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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35044
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Our daughter died on 18th September. She had been separated

Customer Question

Our daughter died on 18th September. She had been separated from her partner (not married) for at least 5 years. Their son, born 25/11/01, lived with his mother and, during the last couple of years, saw his father every other weekend. Our grandson has been living with us since the end of August when his mum first became ill. He has recently started a new school and appears to be settling into his new surroundings, despite the unfortunate circumstances. Initially, his dad was agreeable to this arrangement but within a week of our daughter's passing, he announced that he was going to move back to the house where they used to live, taking our grandson away from us and the school he has been attending for the last few weeks. We believe that because of our grandson's DoB (before 01/12/03), his dad does not have 'automatic' parental responsibility and that we, as maternal grandparents, should have some say in the making of decisions. We do not know how we can enforce our rights, if, indeed, we have any. Please advise asap.
Submitted: 4 years ago.
Category: Family Law
Expert:  Clare replied 4 years ago.
Thank you for your question.
My name is Clare and I am so very sorry for your loss.
I will do my best to help you but I need some further information first.
Did your daughter leave a Will
Customer: replied 4 years ago.


Expert:  Clare replied 4 years ago.
Is your grandson more likely to wish to remain with you - or to return to his old home (do not ask him)
Customer: replied 4 years ago.

Not entirely sure - he has a comfortable life here but is tempted by the thought of seeing friends where he used to live

Expert:  Clare replied 4 years ago.
At present no one has Parental Responsibility for this child and if you and his father cannot reach an agreement on where he should live then it will be up to the Court to do so.
Given his age it will be his wishes which will be decisive - unless there is reason to think that he will not be safe in his fathers care
It woudl be sensible to try and discuss matters with his father using Family mediation ( and a mediator trained to work with young people.
An application WILL have to be made as at present no one can obtain a passport for him nor in fact make any legal decision about him.
I hope that this is of assistance - please ask if you need further details
Customer: replied 4 years ago.

Thanks for this Clare.

There are some comments/questions:the application of the 'law' and the views of Social Services are not in harmony. We have been told that our grandson is too young to make a choice and the relative merits of both options would be considered if Social Services were to become involved. If neither party currently has Parental Responsibility, can we apply for a Residence Order or a Parental Responsibility Order to pre-empt any similar action by the father. Presumably, as things are now, neither ourselves nor the father have 'priority'. If this is so, returning to the original question, is there any action that we can take that would leave us at least one step ahead?

Expert:  Clare replied 4 years ago.
There is often a tug between the approach in Public Law(care cases) and Private Law (between family members) but in this case the wishes of the child will definitely be taken into account and are likely to decide the issue.
It will not be Social services who become involved if a Residence Application is made - it will be CAFCASS
Unless Social Services have already been involved with the child in the past.
In fact doing nothing for a while is your strongest card - as the longer the child is with you the less likely it is that this will be changed.
If you apply now matters are still up in the air - so wait for at least six months if you can
It does not matter who makes the application - but you CANNOT apply for Parental Responsibility as you are not a biological parent - you can only apply for Residence.
His father can apply for Parental Responsibility - but will also have to apply for Residence if he wants the child to live with him