Chapter one - frequently asked questions

Q1: Should I apply for a Residence Order?
Q2: What will I have to pay?
Q3: Which court fo I apply to for a Residence Order?
Q4: Do I have the right to apply for a Residence Order?
Q5: Which forms do I need to complete?
Q6: Where do I get the forms?
Q7: What do I need to think about before I complete the forms?
Q8: Form C2: Application for Leave to Apply for a Residence Order
Q9: Form C1: Application for a Residence Order
Q10: How do I fill in the forms?
The Welfare Checklist!

Should I apply for a Residence Order?

This downloadable information document deals with ‘simple' residence order applications where a child is not subject to care proceedings, but has been placed with grandparents by the birth parents, or by social services. If a social services department have become involved in placing your grandchild with you, this may be because they have taken responsibility for him/her as a ‘looked after' child (see under Useful Terms), or simply asked you to care for him/her during a crisis or because the police have asked them to find someone to care for the child(ren).

Some families will not find these instructions appropriate for their circumstances (for example if a child is ‘in care' and they wish to be ‘joined as a party' to a case which is already on-going, or they are applying for an order to be changed). In such a situation there will be some overlap in forms to be completed and therefore some of the instructions in this section will be relevant. However, if you are in these more complicated circumstances please ask for advice from a CAB/Law Centre/FRG advice line on filling in.

Before you read on you need to weigh up the pros and cons of applying for a Residence Order for your grandchild. If you decide that you wish to formalise the situation by going to court and applying for a Residence Order (RO) these notes will take you through the various stages of the application.

Although we aim to provide you with enough information to apply for a DIY Residence Order (without instructing a solicitor); you, the person running any support group you attend, or your family might want to find out more about Family Law matters. You can find books on family law in the library, or by looking up some of the websites listed at the end of this download.

If you do want to find out more, the law which governs applications for Residence Orders (and other s8 orders) is found in:

• The Children Act 1989;
• The Family Proceedings Rules 1991; and
• Family Proceedings Courts (Children Act 1989) Rules 1991.

What will I have to pay?

If you want to instruct a solicitor to apply for a Residence Order on your behalf, you will need to pay their costs. This can be extremely expensive and some grandparents we have spoken to say that they have had to pay thousands of pounds for this service. The fees payable to a solicitor cover the cost of preparing your case, filing forms at court and associated costs. Typically a solicitor will charge an absolute minimum of £75 an hour for private law family cases, and then there are the barristers' fees (to represent you in court) on top of the solicitor's own charges. However, in some circumstances you may be able to obtain financial assistance towards the cost of the case.

When making your application for a residence order, are you eligable for finacial assistance?

You may be eligible for Legal Service Commission assistance (formerly known as legal aid) if you satisfy the LSC Merits Test (by showing that you have a reasonable chance of succeeding in your application) and the Means Test (either because you or your partner is receiving benefits, such as Income Support or income relative Job Seekers' Allowance, or your disposable income is below the set threshold and your capital is less than £8000). To find out more details about whether you are entitled to financial assistance to cover all or part of the costs of the application you need to speak to your solicitor or consult Community Legal Services Direct website www.clsdirect.org.uk, which includes a legal aid calculator.

Remember, if you are in receipt of a variety of social security such as jobseeker's allowance or income support you will not be assessed on income, only on capital. Your solicitor will be able to provide you with more advice on this matter. You can also look on the legal services commission website www.legalservices.gov.uk for downloadable leaflets relating to the various services they provide, and financial eligibility criteria.

You can also check to see if your local Social Services Department have any scheme for assisting grandparent carers with applying for a Residence Order. (SSDs will usually only offer practical or financial help if your grandchild has come to live with you at their request).

If you are not able to obtain help with costs and cannot afford to pay for a solicitor yourself (or consider that the costs are too dear) you can apply for a Residence Order on your own by completing the forms and speaking for yourself in court. If you do this, the only costs you will incur will be the court issue fees.

Going to court on your own might sound daunting, but judges, magistrates and the court staff will often do their best to make the experience as easy as possible. Don't forget that you can ask the judge or magistrate for permission to take a friend or family member into court with you to give you support on the big day. The court will ask the other party if they object to you having a supporter with you at the hearing, but in general someone who does not have a solicitor will usually be allowed to bring a friend with them as long as they are quiet and unobtrusive.

We will not pretend that applying for an order is a simple thing to do, but then you have already done lots of difficult things to have got this far in caring for your grandchild. We would suggest that while you are applying for a RO you get as much support as is possible from your friends, family, social worker, CAB and of course the people who run any support group that you might be attending.

We know that this is a very important application and in this section we give information on how to complete the court forms - if you are not sure about anything on the forms ask at a CAB, the person running a carers support group, enquire whether your local court has a ‘help service', or call the FRG advice line for information.

Which court do I apply to for a Residence Order?

Before you complete the forms you will need to decide which court you want to deal with your application. A number of courts have the power to make a Residence Order. These are:

• FPC (Family Proceedings Court) - where specially trained Magistrates with experience of family issues will deal with your case; or a
• County Court (CC) - where a family court judge will hear your application.

Different fees apply depending upon whether you start proceedings. FPCs are less expensive than County Courts. Broadly speaking you should find that a FPC is the appropriate place to deal with a simple residence order application.

Your local CAB or law centre will have a list of courts and their addresses, and you can also find out this information by logging onto the court service website, at www.courtservice.gov.uk/cms/forms.htm and clicking on court addresses.

If you have decided to apply for an order because you know that other court proceedings relating to your grandchild are taking place (for example care proceedings, or a contact application made by the parents), make sure you apply to the same court where those proceedings are taking place so that the cases can be heard together.

Do I have the right to apply for a Residence Order?

The Children Act s10(4) & s10(5) states that only certain people have an absolute right to apply for a court order in respect of children. As a grandparent, unless your grandchild has lived with you for more than three years, you will need to obtain and complete two sets of court forms. This is because you will need to apply for permission from the court to ask for a residence order, this stage of the process is called "leave to apply" (see below for a fuller discussion on ‘leave to apply'). This screening process is intended to ensure that a child's life and well-being are not disrupted by someone with a fairly distant relationship applying for an order which has little chance of success.

Which forms do I need to complete?

Unless you can apply to the court for an order as of right (because your grandchild has lived with you for the past three years) you will need to complete 3 forms.

You will need:
Form C1 - Application for an Order
Form C2 - Application for leave to apply for a Residence Order

You may also need to fill in Supplementary Information Form C1A

If the children have lived with you for at least three years you will only need to complete Form C1. Make sure that you also obtain the leaflets CB1, CB2 and CB3 which provide information on completing and serving the forms.

Where do I get the forms?

These can be downloaded here(C1, C2, C1a), or obtained from any County Court, Family Proceedings Court, or from the Court Services website: www.courtservice.gov.uk. Some CABs might also have the relevant forms available on the premises, particularly if you live some way away from a court.

What do I need to think about before I complete the forms?

You do not have to wait for the result of the ‘leave to apply' application before you apply for an order. We would recommend that you put both forms into court at the same time. However, there are slight differences in the way in which you need to approach completing these forms and you should read this section before moving to the step-by-step guide to completing the forms, Form C1 and Form C2, and Form C1A.

Form C2: Application for Leave to Apply for a Residence Order

The Children Act (and a series of court cases about relatives and friends who have applied for orders) defines a simple test for deciding whether ‘leave to apply' will be granted. In the box below we provide a list of the factors that the court will consider when deciding whether to grant ‘leave'. Remember that being granted leave to apply simply means that you can proceed to the next stage of applying for a residence order, not that the order will be automatically granted.

Factors to be considered by the court when deciding whether to grant 'leave' to apply (Children Act Part II, s10 (9))

• what sort of order you wish to apply for (for example a residence application would be subjected to higher scrutiny by a court than a contact application)
• your relationship and personal connection to the child (how well you know the child and what sort of connection exists)
• whether awarding you a s8 order(e.g. a Residence Order) would cause disruption to the child to the extent that they were harmed (for example if a cousin who had a limited personal relationship with a child and perhaps did not get on with the child's parents, was willing for their relative to live with them, but would then try to avoid him/her having contact with their parents).

Where the child is ‘looked after' by a local authority the court must also consider

• the local authority's plans for the child's future (for example, whether they wished to have the child to be adopted)
• the wishes & feelings of the child's parents (which may be difficult if, for example, you are a paternal grandmother and have a poor relationship with the mother, but could also help your application if, for example, your son or daughter is happy for you to have the children living with you).

You will find an example of a supporting statement in support of your ‘leave to apply' application in the next section of this download (Filling In Form C2).

If you have any further questions about ‘leave to apply' and how to complete Form C2 you can always speak to a CAB advisor, staff at your support group and/or Family Rights Group for additional information.

Form C1: Application for a Residence Order

The Children Act says that in any application involving a child's upbringing, the court must act in the ‘best interests' of the child when deciding whether to grant an order. To help the court decide what is in the ‘best interests' of the child a list of relevant factors the Welfare Checklist has been devised, and the court must always take account of this list when making a decision which impacts on a child. You need to think about the checklist and how applying for a residence order will affect your grandchild when making an application for an order. If you can refer to the checklist categories when you complete the forms it will show the court that you are aware of the law and have thought about your situation carefully. You can download a copy of the Welfare Checklist elsewhere on this site. We have also included some examples of situations where the court might want you to show that you have thought about any difficulties and disruptions which your grandchild would experience if they came to live with you.

How do I fill in the Forms?

The rest of this download provides you with information on completing the forms. We show you how to fill in the various sections of the forms (using invented situations based upon typical cases where grandparents have become carers following family crisis). We have provided you with two example families, one (used to complete Form C2) where the grandmother has become a carer after reaching a private agreement with her daughter (the children's mother) and the other (Form C1) where social services have become involved and placed the children with their grandmother and her partner. We hope that these examples will give you enough information to complete your Residence Application without help, but do please contact the FRG advice line if you need more advice or assistance, or your situation is very different from the examples we have outlined.

We would recommend that you download Forms C1 and C2 and C1A from this site and practice completing them before you hand the final version into the court. It may be a good idea to let a CAB worker, Social Worker (if you have one) or the coordinator of any support group you attend have a look at your draft answers to see if they feel you have given enough weight to all of the relevant factors, and perhaps to gain a few suggestions and/or support before you go to court.

The Welfare Checklist (Children Act s1(3)) and how this affects your Residence Order Application

The wishes and feelings of the child concerned (in the light of his or her age and understanding). (This doesn't mean that the court must act on the child's wishes, but it must take them seriously)

• The child's physical, emotional and educational needs. The court will look at how the child's needs have been met in the past and whether the proposed plan is an improvement. For example, if your grandchild will have to change schools to live with you, you will need to show that this is necessary to meet his or her other needs, such as being able to live with family members rather than with stranger foster carers, or to protect him/her from neglect, etc.
• The likely effect on the child of any change in his/her circumstances. If your grandchild is moving house to live with you, you will need to show that the disruption involved is outweighed by the benefits of having a stable home with family members.
• The child's age, sex, background and any characteristics which the court considers relevant. The court will look at your grandchild's individual needs and the ways in which you can meet them. Think carefully about this section of the checklist as you will need to show that you have considered any special needs or potential difficulties such as a child's disability which will require you to provide long-term or specialist, 24 hour care; the fact that s/he might have been brought up in a different religion to you and you will need to ensure that they can attend religious classes at a mosque or Christian meeting house, etc. In addition, if you come from different cultural or ethnic backgrounds you will need to show the court that you have considered the importance to your grandchild of access to positive role models and remaining in touch with their heritage.
• Any harm which the child has suffered or is at risk of suffering. The court will need to be reassured that you can protect the child from harm, which has perhaps been suffered while they were living with their parents. For example how will you safeguard your grandchild during contact visits with their parents.
• How capable the child's parents, and any other person the court considers relevant, is of meeting the child's needs. If you are applying for a residence order you will need to demonstrate to the court that you can care for your grandchild adequately. You don't need to show that you will carry out all of the care yourself, but that you have thought about their needs and the help you will need to care for them - for example, if you are disabled, you should that some system is in place to help you meet your grandchild's care if you have to go into hospital, or have mobility problems, or that you need help to deal with certain situations and are looking for assistance, such as could be provided by your social services department.
• The range of powers available to the court. In some circumstances the court can make orders which vary from the ones applied for if they believe it would be in the best interests of the child - for example you might have applied for residence order but the court thinks a contact order which defines how often and where a child can see their parents is appropriate.