Sometimes breakdown in relationships can result in children missing out on seeing grandparents, aunts and uncles and other family members. This can have a detrimental impact on children who have a close bond with their family members, especially grandparents.
As family law solicitors we often get approached by grandparents asking what their rights are when it comes to seeing their grandchildren. It is important to point out that the current law does not give grandparents an automatic legal right to see their grandchildren. But, this does not mean there are no options. Grandparent can ask the court for permission (leave) to apply for a child arrangements order giving them time with their grandchildren.
What are the steps that grandparents should initially take?
- Informal agreement with resident parent
- Application to the court for access
Before any application is made for an order to spend time with a grandchild, the first step is to try and reach an informal arrangement with the resident parent. If one cannot be reached then the next step is to suggest mediation.
If all fails and a grandparent has to apply for permission the court will consider the following when deciding whether to grant permission or not.
What will the court consider when making its decision?
- The grandparent (known as applicant once issuing proceedings) connection with the child.
- The nature of the application for contact.
- Whether the application might be potentially harmful to the child’s wellbeing.
However, the above list is not exhaustive and the court may take into account any other factors deemed relevant.
If the court does grant permission a grandparent can then apply for a child arrangements order to spend time with their grandchild. If one or both parents object to the application then there may be a full hearing where each party will give evidence.
The overriding consideration in family proceedings is the welfare of the child, in other words ‘what is in the best interests of the child’. The court will also consider the criteria set out in the welfare checklist, set out below:
- The ascertainable wishes and feelings of the child concerned
- The child’s physical, emotional and educational needs
- The likely effect on the child if circumstances changed as a result of the court’s decision
- The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or maybe at risk of suffering
- Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- The powers available to the court in the given proceedings
What could grandparents expect in terms of future legal rights?
In 2016, there were almost 2,000 applications for child arrangements orders made by grandparents. The rise in applications from grandparents has recently led to a call by MPs to change the law and enshrine a right for grandparents to see their grandchild. They want an amendment to the Children Act, which would include a child’s right to have a close relationship with members of their extended family. The change would also cover aunts and uncles seeing nieces and nephews. The Ministry of Justice said it would consider the proposal.
This is not the first time the situation has been looked at. The issue of contact for grandparents was considered in 2011 as part of an independent Family Justice Review. The report recommended the position stay as it is to “prevent hopeless or vexatious applications that are not in the interests of the children”.
However, it will be interesting where this campaign will take us in the future and whether there will be any amendments to the Children Act. In any event the child’s welfare will be paramount to any decision made.