As a family lawyer, what advice can I offer a grandparent seeking a residence order in relation to a grandchild? Cases involving children aren’t easy for lawyers to handle. Far from it. They are frequently packed with emotion and distress, which however hard you try can sometimes rub off on the lawyers involved – say if an innocent child or children are caught up in a very nasty situation and clearly suffered as a result.
That is why I decided to set up a dedicated Children unit within the firm, because these cases demand experienced, sensitive handling. Certain family lawyers are cut out for this type of work, and others aren’t. I find dealing with children cases very difficult, but just this once, there was a high profile child case with which I did become involved – with assistance from the head of our Children’s Unit, Stephen Hopwood, to whom I am very grateful!
Here it is:
At Stowe Family Law, as regular readers of this blog will know, the details and circumstances of all those who seek our advice are kept confidential. In this case, however, I am going to make an exception…
Born on 6 July 2003, Simon Barlow lives at 19 Rosamund Street, Weatherfield, with his father Peter Barlow. His mother Lucy has died and Peter’s girlfriend, Leanne, lives with them. Simon likes her and once, when she moved away and left him, he called his male rabbit “Leanne.” Simon attends Bessie Street Primary School, likes bedtime stories and rabbits, and hates fires and nativity plays.
He has grandparents, Ken and Deirdre Barlow. He has another grandfather, George, who has only just appeared in his life because George and Simon’s late mother Lucy were not on good terms.
Peter is an alcoholic and once set the house on fire when drunk. Luckily both Simon and Peter were able to escape. Because of Peter’s behaviour he is at odds with George over what is best for Simon.
Does any of this sound familiar?
Simon and the rest of his family are, of course, characters in Coronation Street.
Corrie, as it is affectionately known, is the longest running soap in UK television history and I must admit I’ve been an on-off fan for most of my life. Set amongst the terraced houses of the fictional “Weatherfield”, close to real-life Manchester in northern England, the storylines have always been filled with honesty, tears and laughter – mostly laughter – and each story line usually has a happy ending
So it was quite an honour and a surprise to be asked to advise on the development of a recent storyline centred on Simon, Peter and the reappearance of Simon’s grandfather, George. As Peter relapses into alcoholism, George begins to play a more important part in Simon’s life.
I am not allowed to say how the story pans out; nor can I describe the legal advice that I gave in relation to how the storyline twists and turns. However I can reveal that I was consulted late last year and that the plotline has unravelled over several months. The scriptwriters have carefully and skilfully developed a storyline about a family struggling to deliver the best outcome for a much loved child, and I was impressed with the amount of detail the scriptwriters required in order to ensure that what was proposed accurately represented the likely outcomes at each point. It was a great pleasure to advise and I really enjoyed myself – because this isn’t about a real child and a real family, it is all make believe.
So on a general point, given that we know the Barlow family’s problems between a feuding parent and grandparent, I pose this question:
What would happen if an application was made to the court for a long term residence order by a grandparent? Would such a person be successful in gaining for his or her grandchild?
In law, the most obvious answer is not always the correct answer.
Two cases are helpful. The first is Re G (2006) UKHL43: a well-known and important decision of the former House of Lords, now the Supreme Court. This was not a case involving grandparents; the case involved two lesbian women contesting residence of their child. However an important issue in the case pertained to the fact of parentage, and the role of a parent in a child’s life.
In that case the biological mother of children conceived during the relationship successfully overturned the Court of Appeal’s ruling that her former partner should have primary care.
Although the only test when deciding where a child is to live is the child’s welfare (this is usually called the “welfare test”), it was made clear in this case that the welfare test would also include the fact of parenthood.
Thus in law: “Parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child”.
In a case heard before the Court of Appeal (Re B (A Child) 2009 EWCA Civ 545) Lord Justice Wall referred extensively to Re G. The hearing was the second appeal of a decision made in a magistrates’ court that had given a residence order to a grandparent, with whom the grandchild had lived from 11 months of age. The father of the child had contact, but had also served a term of imprisonment for assault. Despite this, the Court of Appeal confirmed the County Court Judge’s decision to reverse the Magistrates Court decision and grant residence to the father.
The judgment said: “There is nothing to gainsay the general principle that all other things being equal, children should live and be brought up by a natural parent.”
I have no doubt that grandparents will shudder at these decisions. Very often grandparents are experienced, tolerant carers and are economically sound, with plenty of time to lavish on their grandchildren. As these cases make clear, however, no one has “rights” over a child. The welfare test is the sole test – and parenthood is, indisputably, an element to be included within that test.
For this reason, my legal advice to any grandparent seeking a residence order in relation to a grandchild is always pessimistic. Action should only be proposed if an agreement cannot be reached. Grandparents should also note that an application to the court could be an expensive waste of money
By far and away the best solution for any real life feuding family is for family members to reach agreement between themselves. Easy to say, hard to do – but think of the welfare test and what is in the best interests of the child. Invariably, you have your answer.