Section 10(1)(b) Children Act 1989: Do Grandparents Always Have to Apply for a Child Arrangements Order?

As we are aware, in cases where grandparents are denied spending time with their grandchildren, they have to apply to the court to do so. Moreover, the procedure is a two stage process, with them having to apply for leave first and satisfying the conditions set down in Section 10(9) of the Children Act 1989. But do they always have to jump through these hoops?

Section 10(1)(b) states that the court can make a Section 8 order with respect to [a] child if “ the court considers that the order should be made even though no such application has been made.”

Under Section 10(9) the court must have particular regard amongst other things when making a Child Arrangements Order to (a): the nature of the application; (b) the Applicant’s connection with the child, and (c) any risk of disruption to the child’s life such that he may be harmed as a result of the application.

In the recent case of G (a Child) [2018] EWCA Civ 305 the Applicant was the sperm donor for the parents who were in a same sex relationship and had entered into a civil partnership. After the child, a boy, was born the Applicant saw him for the first three years of his life on a frequent and regular basis, although he did not take on a parental role. The Applicant’s parents saw him at family events over that same period of time.The parents separated but continued to co-parent the child. Their separation made the Applicant spending time with the child burdensome and troubling and for about eighteen months, neither the Applicant or his parents saw him.

The Applicant obtained leave to apply for a Child Arrangements Order, and upon advice from the appointed children’s guardian the parties agreed to the Applicant spending time with the child seven times per year. The guardian also advised that the Applicant’s parents, who were not parties to the proceedings, should be allowed to attend their son’s contact on two of those occasions, providing he agrees and the order was made in those terms. The parents objected to the Applicant’s parents spending any time with him and appealed on that basis only.

The parents grounds of appeal were that the judge made a legal error in imposing an order in favour of the Applicant’s parents, where they: (a) have no legal or psychological relationship with the child; (b) were not parties to the proceedings, were not entitled to apply for an order, and had not sought or been granted leave to do so.

The appeal was dismissed and the Court of Appeal reiterated what was said in Gloucester County Council v P [1999] 2 FLR 61 at pages 72-73 by Butler-Sols LJ,

“ The power given to the court by S10(1)(b) incorporates into the Children Act the jurisdiction of the High Court in wardship to make the most appropriate order in the interests of the child without being trammelled by procedural hurdles…I do not consider that, in the absence of clear words of restriction upon the powers of the court which are to be found in other parts of the Act, S10 should be be read narrowly so as to curtail the powers of the court in the exercise of its discretion, where the welfare of the child is paramount…I think it is important, however, to add some words of caution. It is obvious, and indeed has been underlined in this court, that the court’s power to make an order not asked for by any party ought to be used sparingly and with caution and only after giving all parties proper time to make submissions.”

Frequently, applications for Child Arrangements Orders are made not just for the benefit of the Applicant but also with a view for the child to spend time with other members of his/her family and there is an objection from the parent with whom the child is living. Indeed, there have been times in my practice when it has been patently obvious that the application, usually by the father, is really being made for the benefit of his parents, so as to avoid the requirements of Section 10(9).

In G (a Child) however, the parents of the Applicant, who in law was not even considered to be the father of the child concerned, were able to benefit from a Child Arrangements Order made in his favour, without the need for them applying themselves for such an order and having to be granted leave under Section 10(9).

In essence therefore it would seem that where the Court makes a Child Arrangements Order in favour of a party to proceedings to spend time with a child, it can also include in that order that other persons are able spend time with that child despite the absence of an application on their part. This is provided all parties in the present proceedings have had an opportunity to make submissions on the matter and the court applying the provisions of Section 1(1) and Section 1(3) of the Children Act 1989.

This position is to be compared to the situation where an application has been made for a specific S8 order; for example a prohibited steps order, and the court grants the Applicant an order that the child concerned should live with him. Section 10(1)(b) has always made allowance for that scenario, so for example in Re M (Children) [2017] EWCA Civ 2164 it was said that “…the duty of the judge is not circumscribed by the way in which the parties choose to identify the issues or argue the case. The judge has a free hand…”

G (a Child) was clearly determined on specific facts and not typical of the sort of Child Arrangements applications that come before the court. In general grandparents will still have to make an application to the court to spend time with their grandchildren. However in my opinion it serves to show the wide scope of Section 10(1)(b) and so provided the court allow the parties to make proper submissions, it can on rare occasions make on order in favour of an Applicant that also specify that his parents are also entitled to spend time with the child.