advice on residence order needed

[STEW]

Hi all, new to the board and am just looking for some advice on my current situation.
My situation is that my 9 year old grandson has lived with me and my wife for the last 7 and a half years since just before his 2nd birthday. He is my step daughters son so he is my step grandson and my wife is his maternal grandmother. This was a private arrangement between us and his mum, there are no residency orders or care orders etc. in place and social services are not involved at all. His mum has always had access to him which she has used sporadically and up until recently he would stay over at her house on occasion.
Within the last few weeks it has come to light that our grandsons mum and her current boyfriend who's house she lives in have been taking drugs recreationally and I am not just talking about marijuana but other stronger drugs. She is also in a lot of debt and has been attempting to borrow money from friends family members etc. In short she is in our view leading a lifestyle that is quite concerning paticularly as there is evidence that some of this drug use has taken place in her and her boyfriends home.
As a result of finding these things out me and my wife took the step of telling her that we didnt want our grandson staying at her house anymore due to her lifestyle choices but we made it clear that we were NOT denying her access to him.
The outcome of this was some extremely heated exchanges between my wife and her daughter particularly, and my step daughter is saying we are denying her access to her son even though we have repeatedly told her were not.
Our concern now is that even though my step daughter in our opinion is not capable of having her son living with her full time and her caring for him full time, reasons for this being she has a drug issue, she currently goes on nights out 2-3 times a week because her son is with us, she is having debt and money problems possibly related to drug use and too many social nights out, she doesn't drive and lives at least 5 miles away from where her son goes to school and finally i'm not sure the will is there,after all he has lived with us for the last 7 years and she has not made moves to get him back with her in that time.
But despite all of that the possibility that she might try to take him back just to teach us a lesson still remains and I feel that we need to try and get some legal protection now in order for us to get some peace of mind that the theat of her taking him away every time we have a concern to raise etc. is removed as far as is possible
Any advice on our situation in particular with regards to wether we should consider residence orders or special guardianship orders etc. would be greatly appreciated
Sorry for such a long first post.
Stew

[Help 1870]

Hi Stew. Dont apologise for a long post,

I think some sort of order would certainly be worth considering, not just for the reasons you mentioned but also because unless mum up till now has been compliant with signing permissions for medical treatment, schools and school trips or anything like that you have no legal right to be making important decisions for your grandson and shouldnt be doing so.

You need to be clear on the differences between a Residence order and a Special guardianship order. With both you share PR with the parent but with SGO you can excercise your PR to the exclusion of all others. You also need to understand the difference in the process of obtaining either order too. With RO the court may request a report on both you and the parents, particularly if the parent resists. With SGO, an assessment of yourself will have to be carried out, many people find these assessments long winded and incredibly intrusive, they delve way back into our deep, dark and murky past and many people find what they dig up or concentrate on to be difficult. Im not trying to put you off, but better the devil you know.

SGO is usually the better option, it provides much more protection for you and the child.

Another thing you may need to consider is the forthcoming changes to the legal aid system. If you think you may qualify for legal aid to obtain an order to protect your grandson then I would suggest you apply soon. Come April its likely that legal aid will be unavailable to many people in your position. If you dont think you qualify then you have to understand that these types of proceedings can be lengthy and very costly, especially if the parents contest. With SGO you need to give the LA 3 months notice of intent to apply before you actually apply to court. So you can see, time is ticking away.

I personally think you have done the right thing putting conditions on contact. Even recreational drug use can get out of hand. I certainly wouldnt want any child of mine or any child I care for to be potentially exposed to something like that.

If you want to talk through your options with someone then I suggest you give the advice line a ring and speak to one of the trained advisors. There are also a number of very good advice sheets on the main website to read through. http://www.frg.org.uk/need-help-or-advice/advice-sheets

The advice line number is 0808 801 0366 (Monday to Friday 9.30am-3.30pm) or you can use the email service [email protected]

[David Roth]

Hi Stew, and welcome to the Family Rights Group discussion forum. I hope you can find the discussions here helpful and supportive.

Even if you weren't concerned about your stepdaughter's lifestyle, it might have been worth thinking about applying for an order for your grandson. Either of the orders you mention would give you parental responsibility, without taking it away from your stepdaughter. Having parental responsibility gives you more legal rights to make certain decisions for your grandson. At the moment, his mother (and possibly the father) are the only people with that legal right.

If you want to look in details into the differences between a residence order and a special guardianship order, you can check out our advice sheets 18 and 19, which also take you through how to make your own application without legal representation: http://www.frg.org.uk/need-help-or-advice/advice-sheets
Essentially, a residence order would be better for family and friends carers who can work more easily in partnership with the child's parents, and where there is less likely to be conflict over what to do for the boy. Special guardianship would be better if you want to be sure you are the one who can make the decisions in the case of any disagreement with parents, as special guardians are given the right to exercise parental responsibility to the exclusion of anybody else. However, with both orders parents are able to go back to court to apply for a contact order. It is more difficult for them if they want to try to revoke the special guardianship order, as they have to get the leave of the court first.

Please do come back if you would like any more explanation about what any of this means, or for a discussion please call FRG's advice line on 0808 801 0366, free to all landlines and most mobile phones, and open 9.30-3.30 Monday to Friday.

Edit: I see that while I was drafting my reply Help1870 has posted hers - thank you! - the advice seems to be very similar.

[Help 1870]

Just another thought. If you dont already keep a diary now might be a good time to start one. Log time/date/persons name of phone calls, details of any discussions (when, who with), text messages (who from, when). as well as any incidents that cause you concern. You may need to refer back to things if you do decide to go down the court route.

[Robin D]

Hi Stew and welcome here.

I totally agree with all that's been posted so far. Can I add three other things to think about please?

1. If you look at the advice sheets at http://www.frg.org.uk/need-help-or-advice/advice-sheets, you will see in Section E two for DIY residence and SG orders. If you can't get legal representation you will find the these invaluable to refer too should you decide to go down either route. You might also just want to read them through as they give a good understanding of what is involved, even if you have a solicitor do it for you.

2. This is slightly more difficult, but you do need to know that if you instigate proceedings, Mum may come out fighting. Too often they then throw all sorts of malicious allegations which of course have to be investigated, but it does put you under immense emotional pressure.

3. You also need to be aware that there is a 'no order' principle. Basically, the courts cannot make an order unless there is a need. Clearly if she is threatening to take the child back, that' good enough reason to make and order, but if the current arrangements have worked for 7.5 years, then that could be used as a contra argument.

The advice line can help a lot with advice in this area.

If you can, I would consider waiting until Mum tells you she wants your grandson back, so you can refuse. She will then almost certainly threaten court proceedings at which point you can then put in your application. If you read the advice sheets, you will at least be best placed to move quickly.

It might also pay to bring the school up to speed with your concerns so they know not to allow them to take the child. I'd also strongly suggest at this point speaking to social services to see if they will support you in maintaining the placement and in protecting the child. When we wre in a similar position some years ago, SS actually told us point blank we must apply for a Residence Order to secure the placement.

Good luck ...... Robin

[STEW]

Firstly thank you for your replies and also some very useful advice. Both my wife and I have discussed at length the need to do this and have prepared ourselves for things getting difficult and potentially nasty with our daughter. I have downloaded the relevant guides regarding d.i.y residence and special guarianship orders and will definitely use the advice line service for some further guidance on how to proceed.
One further question I would like to ask is regarding what our options would be if my stepdaughter decided before we put any legal proceedings in motion that she was taking my grandson to live with her or if she came to take him out for the day but then just refused to bring him back. Currently she is deliberately not having any contact with us at all and although she has not had her son living with her for the last 7 years I am concerned that she reacted so explosively to our current situation and our request for him not to stay over at her house that the above scenarios are a possibility.
If they were to occur could we do anything about it?

[Help 1870]

One further question I would like to ask is regarding what our options would be if my stepdaughter decided before we put any legal proceedings in motion that she was taking my grandson to live with her or if she came to take him out for the day but then just refused to bring him back.

Perhaps David could Confirm, but my understanding is that as she is the only one with Parental Responsibility there is little you can do immediately if she demands you hand the child over or refuses to bring him back. I think even if you let the school know whats going on they would have difficulty refusing mum should she turn up, although they can hold on to the child for a while till you are informed and take some action.

Should that happen I assume you could apply to court for an emergency hearing for an Interim Residence order (there is no such thing as an Interim SGO) and deal with it all when/if that was granted.

Perhaps as Robin has said it might be worth you giving social services a ring to advise them of the situation and seeing what they say. It may be they advise you not to hand the child over and contact them if she does try to remove him from your care. I think its likely that they will advise you to obtain at least a RO anyway, especially if it means their involvement will be minimal.

I dont totally agree with what Robin says about the 'no order' principle though (sorry Robin). Things may have been working up to now but they clearly arent any longer. Just because an order hasnt been applied for or been necessary up to now doesnt mean that will go against you. It may actually be a positive in your favour that you have managed a situation for so long, that I cant believe has been a bed of roses, without the need for legal or social services intervention.

[Robin D]

One further question I would like to ask is regarding what our options would be if my stepdaughter decided before we put any legal proceedings in motion that she was taking my grandson to live with her or if she came to take him out for the day but then just refused to bring him back.

You need to ring the advice line on this, but from our experience, we had to apply to the court for a Recovery Order. However, we were already 'in the court system', although no orders were in place at the time. We had applied for a RO at the insistence of SS after the child had been with us for about 5 years. Mum and boyfriend then took the child during contact supervised by us on a Saturday in a shopping centre. After two sleepless nights, on the Monday the judge issued an immediate Recovery Order, insisting on the support of the police, and despite not having been asked for one, an interim RO.

I dont totally agree with what Robin says about the 'no order' principle though (sorry Robin).

Please don't apologise. I certainly not the font of all knowledge some seem to think I am. We are all in this together and its a 'discussion' forum. I was putting it up in that it might be used as an argument, not that I think it has any merit as such!

Best wishes ..... Robin

[David Roth]

This issue of whether or not the 'no order' principle would apply is quite an important one. The no order principle in the 1989 Children Act states that no order should be made unless it is better than not making an order. It is meant to stop the courts from getting involved unnecessarily in people's lives. It means that in your case, in order to make a residence order or special guardianship order, the court would need to take the view that it was better for you to have the order than for you to be without it.

The court might take the view that, as Robin has suggested, things have gone along fine until now, so why make the order. However, your case against this would depend on showing that it would be better to make the order than not to make it. One reason that it could be better is that it would give you more freedom to make decisions for the child, by giving you parental responsibility for him. Although you have been doing most of the work to bring him up over the last 7½ years, legally the only people who can make decisions about him are his parents. You might run into difficulties if you want to apply for a passport to take him abroad on a holiday, for example.

Also, there has been a change of circumstances, in that you are now more worried about him returning to live with his mother than you were before. Where a private arrangement might once have been acceptable, you might now say that you need a court order in order to make his place with you secure.

This is clearly a difficult and worrying situation, so please do come back if you have any queries about what has been written.

[STEW]

hi again everybody, just wanted some advice regarding seperated parents information program. (SPIP) just to update our situation. we are currently in the middle of trying to get a residence order for our grandson which IS being contested by his mum. we are due in court again tomorrow. currently we have a prohibitive steps order in place to prevent my grandson being removed from our care and we have delegated parental responsibity from his mum (which the judge had to more or less tell her to give to us).
recently we conducted a telephone interview with cafcass in which they told us they would likely to be recommending us for a residence order. they have spoken to mum as well.
the report we received from them today is favourable to us but not definitive re: recommendation for an order and as part of the recommendations they have suggested the course above (SPIP)
1. would we have to do this course before an order was granted?

2. is the purpose of this course to try to not need an order?

3. is it usual for cafcass to not be definitive with their advice despite suggesting verbally they would be?

any advice gratefully received

Stew