Jennie Apsey, Solicitor in the Family Department at Dean Wilson LLP,
explores the rights of grandparents.
In an ideal world, all family relationships would be strong and healthy, and everyone would get on. However, family arguments do happen and sometimes have significant consequences. Whether as a result of falling out with your children and their partners, or as result of them going through an acrimonious separation or divorce, you may find that access to your grandchildren is restricted or completely cut-off, which can be a very painful experience.
Do I have any legal rights as a grandparent in England?
Grandparents do not have an automatic right to contact with their grandchildren and the law primarily recognises the rights of parents in matters concerning the upbringing of their children. However, under the Children Act 1989 what is in the best interests of the child is the primary consideration and therefore all is not lost should you find yourself being denied a relationship with your grandchildren.
What should I do if I am not being allowed to see my grandchildren?
If you find yourself in this situation and you have been unable to negotiate with the children’s parents to come to an agreement, you should see if you can resolve the issue amicably with the help of a mediator. A trained mediator could help you come to a satisfactory agreement without the need for any court orders and they are likely to understand the sensitive and emotionally stressful nature
of the situation.
What happens if mediation is refused, or it breaks down?
In this instance, it is important to take specialist family law advice. Only people with Parental Responsibility have an automatic right to make an application to the Court for a Child Arrangements Order, and grandparents will require the permission of the Court to make an application. In practice, the application for permission is dealt with at the same time and on the same form as the application for a Child Arrangements Order (form C100). You will need to explain your reasons for making the application, and in the majority of cases permission will granted and the application issued after consideration of the following:
• The grandparent’s relationship with the grandchildren;
• The nature of the application;
• Whether there may be a risk of any harm to the grandchildren if the application is granted;
• Whether permitting the grandparents to have contact with the grandchildren would have any negative effects on the rest of the family.
What happens when an application is issued?
The parents of the children will be notified of the application made by the grandparents and a hearing will be listed. If no agreement can be reached at this stage of the proceedings, further hearings will be necessary, culminating in a Final Hearing at which oral evidence will be heard from both parties. During the course of the proceedings, usually with the help of Cafcass, the Court will obtain the views of the grandchildren, providing they are old enough to express them.
The Court will make a final decision with reference to the Welfare Checklist found in section 1(3) of the Children Act 1989:
• The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding);
• Their physical, emotional and educational needs;
• The likely effect on them of any change in their circumstances;
• Their age, sex, background and any characteristics of theirs which the court considers relevant;
• Any harm which they have suffered or are at risk of suffering;
• How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
• The range of powers available to the court under the Act in the proceedings in question.
The Court must put the best interests of the children ahead of any other considerations including the wishes of the parties. If the Court believes that contact with the grand-parents is beneficial for the children, they will grant a Child Arrangements Order which will stipulate the terms of that contact.
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