May 8, 2018Grandparents’ rights: a call for change

Grandparent and child

MPs are calling for the government to give grandparents rights to see their grandchildren after a divorce. They are proposing a change to the Children Act which would give children the right to maintain their relationship with members of their extended family. In addition to grandparents, the change would also facilitate contact between aunts and uncles with their nieces and nephews.

Under current rules, relatives wishing to continue contact must ask the court for permission to make an application for access rights. There is no statutory right for a grandparent to see their grandchild and every case is considered on its own facts. Successful applications will usually result in a Child Arrangements Order.

However, during a debate last week, Conservative MP Nigel Huddleston said he was aware of grandparents who had been accused of harassment and were visited by police after sending birthday cards and Christmas gifts to their grandchildren.

He said:

“Divorce and family breakdown can take an emotional toll on all involved, but the family dynamic that is all too often overlooked is that between grandparents and their grandchildren.

“When access to grandchildren is blocked, some grandparents call it a kind of living bereavement.”

Labour’s Darren Jones noted that there was now cross-party support for a change to the law.

Children’s minister Nadhim Zahawi said the government would consider proposals that could improve the system, but the wellbeing of the child would be the overall consideration.

He stated:

“If we keep the child front and centre, we will always do the right thing.”

Grandparents’ rights were last examined as part of the independent Family Justice Review in 2011. The report concluded that Child Arrangements Orders were an appropriate solution to

“prevent hopeless or vexatious applications that are not in the interests of the child”.

A Ministry of Justice spokesperson said:

“The welfare of a child is the primary consideration for the family courts and steps are taken wherever possible to reduce the impact of family conflict on children when relationships end. We will consider any proposals for helping children maintain involvement with grandparents, together with other potential reforms to the family justice system, which are currently being looked at.”

What you can do in the meantime:

(1) Mediation

If you are a grandparent who has been denied access to your grandchildren, first consider whether mediation might be helpful. This involves speaking to the child’s parents or guardians with the help of a trained mediator and trying to reach an agreement.  Mediation is a good way to preserve or rebuild relationships, in contrast with taking court action which rarely results in positive feelings between the parties.

(2) Asking the Court for permission to make an application

If mediation proves unsuccessful, you will need to ask the Court for permission to make an application. We can assist with this process.

When deciding whether to grant permission, the Court will take into account:

Nature of application: This means that the Court will consider the fact that you would like a Child Arrangements Order and what you have requested (e.g. type and frequency of contact).

Your connection to the child: This means that the Court will consider both the blood relationship that exists between you and child, and the actual relationship existing between you and the child. For example, it would be relevant if there was currently frequent contact plus contact prior to the child’s parents splitting. The more meaningful and important the connection is to the child, the greater weight the Court will give to this factor (Re M (Minors in care) (Contact: grandmother’s application) [1995] 2 FLR 86).

Any risk there might be of the proposed application disrupting the children’s life to such an extent that they would be harmed by it: “Harm” means ill-treatment or the impairment of health or development including, impairment suffered from seeing or hearing the ill-treatment of another.

The Court could deny you the right to see the child if seeing them would impair their health or development. However such an impairment would have to be quite severe for the Court to refuse contact (Re M (Minors in care) (Contact: grandmother’s application) [1995] 2 FLR 86). If there has been no contact, the Court may take the view that the children are at risk of harm by not re-establishing contact. There may be practical ways to deal with genuine concerns that still allow for contact.

Merits of the application: The test is whether you have an arguable case (rather than a good arguable case) (Re B (A child) (Care proceedings: joinder) [2012] EWCA Civ 737).  However, establishing that an arguable case exists is not in itself sufficient to obtain permission and the court will need to consider all of the relevant factors (some of which may outweigh the conclusion that there is an arguable case).

Other factors: The Court is not limited on which factors they can take into account when considering an application for permission and the factors contained in the welfare checklist could still be relevant to the decision.

(3) Applying for a Child Arrangements Order

Once the Court has granted permission, an application can be made for a Child Arrangements Order. When deciding whether or not to grant an order, the child’s welfare must be the Court’s paramount consideration.

The Court will take into consideration:

  • The ascertainable wishes and feelings of the child (considered in light of their age and understanding) 
  • The child’s physical, emotional and educational needs 
  • The likely effect on the child of any change in circumstances
  • The child’s age, sex, background and any characteristics which the Court considers relevant.
  • Any harm that the children have suffered or are at risk of suffering
  • How capable the applicant is of meeting the children’s needs 
  • The range of powers available to the Court

There is a ‘no order’ presumption which requires that the Court will not make any order unless it considers doing so would be better for the child than making no order at all.

Further, the Court must have regard to the fact that delay in reaching a decision could prejudice the welfare of the child (particularly relevant if the child is very young).

Hostility: Sometimes there will be hostility between the grandparents and the child’s parents or guardians.

In Re S (A minor) (Contact: grandparents) [1996] 1 FLR 158, the Court of Appeal held that contact should not be denied simply because the parent with whom the child lives indicated that they opposed contact and would not co-operate with a contact order.

By contrast in Re W (A minor) (Contact: application by grandparent) [1997] 1 FLR 793  the High Court upheld the magistrates’ decision to deny direct contact because of extreme hostility. The Judge encouraged indirect contact and emphasised that in the future direct contact may be appropriate.

It is clear that should the opportunity should arise, those seeking contact should make all effort to improve their relationship with the parent or guardian and ensure that they do not show any hostility towards the child’s parents/guardians before or during the proceedings. This is why mediation can be an effective way forward.

Prospect of success:

There is no presumption that contact with a grandparent is in the children’s best interests. In Re A (A minor) (Grandparent: contact) [1996] 2 FLR 153 it was suggested that for extended family members, the burden remains on an applicant to demonstrate that contact is in the child’s best interests. The burden then shifts to anyone opposing contact to show why it should not take place.

However, the courts do recognise the value to a child of contact with grandparents. In Re J (A child) [2002] EWCA Civ 1346 Thorpe LJ said that it is important that trial judges recognise the valuable contribution that grandparents make.

If you are experiencing issues with contact, get in touch for advice – call us on 08700 120 130 or email info@aprilking.co.uk.

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