Grandparents cannot always assume parental responsibility (from Solicitors Journal)

Family Law|August 11th 2015

During times of family crisis it is common to see extended family, especially grandparents, step into the breach and provide much needed support. This is to be commended, but it begs the question whether intervention by grandparents on a more permanent basis is ultimately the right solution to family problems. It depends.

This was highlighted recently before Chelmsford Family Court, where grandparents to a three-year-old girl, C, applied for a child arrangement order so C could stay with them on a permanent basis. The reason for the application was that the child’s mother, M, had been hospitalised for mental health issues. The father was not in the picture.

C was in foster care and the local authority and her guardian wished to put her up for adoption.

The main arguments revolved around the grandparents’ ability to look after a three year old. C’s grandmother had a history of depression and was on medication.

District Judge Hodges pointed towards a detailed viability assessment on the grandparents. It found that the mother had ‘an unhappy and dysfunctional childhood’ and that there was no evidence the grandparents had addressed their parental style. The grandparents ‘lacked insight as to the impact they had had on M’s upbringing and welfare’.

The grandparents had the laudable intention of trying to keep a relationship going with their daughter M, but the valid point was made that this could expose C to the ‘extreme behaviours’ which had caused M to be hospitalised in the first place.

In law, the welfare of the child is paramount. For adoption, the test is ‘nothing else will do’. In the case of grandparents, it is reasonable for the court to consider factors such as age and state of health when assessing whether they can realistically meet the child’s welfare needs.

That has not stopped grandparents from assuming parental responsibility for grandchildren in the past. However, in this particular case, the judge said that C needed a ‘forever family’, and that any disruption to the local authority’s care plan would be extremely disruptive to the child.

I’m sympathetic, of course, to the grandparents’ feelings. I’m sure they had the best of intentions for C. But when their application was refused, they cried foul, saying their age was the main reason why the ruling went against them. I doubt it.

A decision of this nature is tough. Adoption carries with it no guarantee of success. There are many examples of failed adoptions causing tragedy for all involved parties. Equally, there are far more that succeed.

The judge has the unenviable task of applying good law to the facts, mindful above all of a duty to give this child the best possible future out of the worst of starts. The bottom line is that the law is ultimately required to decide only the welfare of the three-year-old girl. From that perspective, the judgment could have no other outcome.

This article was first published by Solicitors Journal, and is reproduced by kind permission

Photo by hapal via Flickr

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