Grandparents and their rights

Category: Divorce, Grandparents

It is generally accepted that children having a relationship with their grandparents brings all kinds of advantages and experiences to their lives.

When parents separate, this can bring about difficulties in agreeing how their children divide their time. Another consequence, often forgotten or pushed to the background,  is time and opportunity for the children to spend with both sets of grandparents.

What is a grandparent to do if their child does not promote a relationship between them and their grandchildren? Can a grandparent apply to the Court to have time with their grandchild?

Following separation, it is possible for parties to come to agree on arrangements for their children to spend time not only with them but also with their respective parents. These arrangements can be formalised in the form of a Child Arrangements Order that is put together by consent.  In circumstances where this is not possible, then parties can make an application to the Court for a Child Arrangements Order and, if arrangements are not agreed during the course of proceedings, then the Court will decide where the child will live and who they will spend their time with.

Under current legislation, it is not possible for a grandparent to go straight to the Court with an application for a Child Arrangements Order in the same way that a parent would.  A grandparent has to first (in most cases) seek permission from the Court to make such an application and, before taking any of these steps, there is a requirement for parties to attend mediation.

If it is not possible for matters to be agreed in mediation, then a grandparent (in most circumstances) will then make an application to the Court for permission to apply for a Child Arrangements Order providing for them to then have time with the child. In considering this, the Court when thinking about whether or not to grant permission, will in particular, consider the Applicant’s (the grandparent’s) connection with the child, the nature of the proposed application, any risk that there might be that the application could disrupt the child’s life to such an extent where they would be harmed by it and, in circumstances where a child is being looked after by a Local Authority, the Authority’s plan for the child’s future and the wishes and feelings of the child’s parents.

If granted permission to apply, the grandparent then has their substantive application to make and, in considering whether or not to make a Child Arrangements Order providing for the child to spend time with the grandparent (it is also possible in some cases for the Child Arrangements Order to provide for a child to live with the grandparent), the Court will give paramount consideration to the welfare of the child.  There is a statutory checklist (a list within the Children Act 1989) that the Court will work through when considering such an application.

It is possible for contact within a Child Arrangements Order to be “direct” (a grandparent physically spending time with a child) and also “indirect” to include sending birthday cards, Christmas cards and letters.  Sometimes indirect contact is ordered to enable a child to rebuild a relationship before progressing to direct contact.

There is a current push by some MPs for Government to change the law in relation to grandparents spending time with their grandchildren after a divorce.  The MPs are looking to amend the Children Act to include a child’s right to have a close relationship with members of their extended family.  The change would not only incorporate contact with grandparents but also with aunts and uncles.

MPs have reported stories of grandparents within their constituencies telling them of the trauma they have experienced following the breakdown of their child’s relationship, not only in connection with that but also that the knock-on effect has meant that they have totally lost a relationship with their grandchild.

During the discussion in the House of Commons, Conservative MP Nigel Huddleston said that he had been told stories of grandparents who have been visited by the Police and accused of harassment because they had tried to send birthday or Christmas cards to their grandchildren. “When access to grandchildren is blocked, some grandparents call it a kind of living bereavement,” said Mr Huddlestone.

It is clear that this area does require review. Not only do the adults in such scenarios suffer significant distress, depending on the age of the child in question, thought must be given to the emotional damage that can result from such alienation particularly during a time when parents are separating and when a child’s life will be changing in all manner of ways.

There is cross-party support for a change to the law and the Ministry of Justice has confirmed that it will consider the proposal to amend the Children Act.

You can find out more information by visiting the following link to a story on the BBC News site.

Anne Shears is a Solicitor within the Nash & Co Family team. She has a wealth of experience in dealing with Family Law and is a member of Resolution, an organisation encouraging family law cases to be pursued and resolved in a non-antagonistic and constructive manner. You can contact Anne on 01752 827015 or by emailing [email protected]