Legal Updates

In the light of the statutory checklist in section 10(9) of the Children Act 1989 a maternal grandmother was granted party status thereby enabling her to issue an application for a residence order for her grandchild. 

Re J, heard in the court of appeal on 31 July 2002, concerned an appeal by the maternal grandmother (G) from an order made on 15 February 2001 refusing her application for party status, and therefore her right to issue an application for residence of her grandchild (B).

G's daughter (M) gave birth to B in January 2001. M had a long psychiatric history, and was unable to look after B. She was an in-patient under the Mental Health Act 1983 hoping for release within a few weeks of the appeal. A final hearing was due to commence on 7 October 2002, and the local authority's view was that B's needs would only be met by a care order leading to a closed adoption placement.

M's position had been ambivalent as she had had an unstable relationship with G, but she stated that if for any reason she was discounted from looking after B then she would want B placed with G. The local authority had considered G as a possible carer for B and carried out an assessment on her, which however concluded that at 59 years of age the burden would be too great.

G applied for party status and for leave to issue an application for a residence order. B's father (F) initially would have supported her, until he considered the local authority's assessment, but he had no objection to G putting her case forward. The local authority opposed G's application, because it concluded that her offer was not a realistic option.

The judge accepted the local authority's submission and refused G's application, considering section 10(9) of the Children Act 1989 and the 1995 case of Re M, which illustrates a three-stage test including that G needed a good arguable case with a reasonable chance of success.

The two man court of appeal allowed the appeal and granted G party status with the right to issue an application for residence, saying:

(1) The judge could not be criticised for his careful review of all the relevant factors which led him to exercise his discretion, but it seemed that G's case had not been put forward with sufficient vigour, and the strength of her position had not been satisfactorily evaluated by the judge.
(2) The statutory checklist in section 10(9) of the act should be given its proper recognition and significance regarding the aims of the local authority, which must take account of the wishes and feelings of B's parents.
(3) The Re M case concerned section 34(3) of the act, which related to an application for contact with children in care. Section 10(9) does not govern applications for contact for children in care.
(4) Trial judges tended to interpret Re M as applying to section 10(9), and that decision had indeed served a useful purpose in its day in relation to section 34(3) applications. However, today's trial judges need to be in tune with the greater appreciation that now exists of what grandparents can offer children, and should not dismiss grandparents' applications without thorough examination.

Comment:
Although this decision does not mean that the grandmother in the case will be successful in her application, it is clear that local authorities in cases such as this will need to look more closely at grandparents as potential carers before dismissing them.  

Bernadette Livesey

Human Rights Solicitor

Walker Morris