Does the law do enough to recognise grandparents’ rights? Jon Whettingsteel, family partner at Dutton Gregory, doesn’t believe it does. Here, he sets out the current legal position of extended family rights, and explores the options for grandparents prevented from seeing a child, referring to recent case law.
As a dad of two young children I recognise the importance of the involvement of grandparents in a child’s life. My children are fortunate enough to have loving grandparents on both sides of the family, and regularly spend time with them. As well as giving the children adult influences from another generation, it also gives my wife and I a break and time to spend time together as a couple improving our relationship.
But does the law do enough to protect the relationship between a child and their grandparents, or other members of the extended family?
The place to start is looking at the legal position, and in short there is nothing in law that references the rights of either. A grandparent is viewed the same as a distant cousin on paper and in statute. At present, Section 2A of the Children Act 1989 states that the involvement of a parent in a child’s life furthers that child’s welfare. My view is that this should be changed to suggest that there should be a presumption the involvement of parents and extended family furthers that child’s welfare, unless it can be shown the extended family pose a safeguarding or welfare risk.
It should be presumed a child will only benefit by having a relationship with all members of their family unless it would be unsafe for any reason. Whilst it is appreciated this could potentially open the floodgates to court applications and proceedings by all members of the family, surely a child will only benefit by having a positive relationship with everyone in their family and recognising their heritage?
The court’s approach
If a grandparent is prevented from seeing their grandchild, before the court will even consider any application for contact, the grandparent will usually need to obtain permission to pursue their application unless they satisfy one of the criteria set out in Section 10 Children Act 1989.
Section 10(9) sets out the criteria the court will apply when considering an application for permission, being;
(a)the nature of the proposed application for the section 8 order;
(b)the applicant’s connection with the child;
(c)any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
If permission is granted then the grandparent can proceed with their application for a child arrangements order, or other Section 8 order, in which case the welfare checklist in Section 1 of the Children Act will be applied.
Political advances
In 2010 the Labour government produced a green paper which set out an intention to remove the requirement to seek leave. Following the Family Justice review and subsequent report under the coalition government in 2011, it was determined that the requirement to seek leave should remain.
Due to many grandparent or extended family cases being considered by district judges ,this means there is little reported in the way of case precedents. For those representing a grandparent in an application, helpful commentary is provided in the case of Re: J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114. Thorpe LT commented on the importance of grandparents in a grandchild’s life, and the strong contribution grandparent contact has for a child, even going so far as to make reference to Articles 6 and 8 of the Human Rights Act and the right to a family life.
Some years ago, the rights of grandparents was a topic in parliament. In 2017, MP David Blunkett asked for a debate in parliament on what plan the secretary of state for education had for addressing the rights for children to see their grandparents following a family breakdown.
This followed a review and recommendations by the Local Government Ombudsman – but for almost a decade this topic has fallen off of the parliamentary radar, despite there being a number of organisations, some of which I have been fortunate enough to work with, lobbying MPs to put grandparents’ rights back on the agenda.
An uphill struggle
I have acted for a number of grandparents who sought to contact their grandchildren and found that in practice this is often an uphill struggle. I can recall one case in which the judge, although incredibly sympathetic and recognising of the previously close and loving relationship between the child and their grandparent, was unable to make an order for contact.
They decided the child’s parents felt so strongly in their personal issues and dislike for the grandparent that an order for contact would negatively impact the child. In short, because of the parent’s own personal feelings, their child was unable to see or have a relationship with their grandparent.
For me, this just felt unfair. This is the same set of circumstances that arose in the case of Re W (Contact: Application by grandparent) [1997] 1 FLR 793, when the judge commented:
“It would be nonsense in the long term for a child to be denied contact with his grandmother because of bitterness between the mother and the grandmother. Grandparents play an important role in children’s lives, especially young children, and their influence is extremely beneficial, provided it is exercised with care and not too frequently.”
The needs of the child
In some cases a grandparent is not seeking just contact, but to take on primary care for a child. In such instances, and where there are questions about a parent being unable to meet a child’s needs, this would usually result in the involvement of the local authority.
This was the question considered in the case of Re B (a child) (residence: biological parent) [2009] UKSC 5, [2010] 1 FLR 551, which was put before the Supreme Court when a court ordered that a child should reside with their maternal grandmother, who had applied to be joined to care proceedings and considered as a possible carer.
Although dealing with an application to be joined as a party to care proceedings, the court also considered the question of an application to be granted permission to pursue an order for contact. This confirmed the judge has to weigh up all factors in each case when deciding an application by a grandparent. Sometimes it will be appropriate to join them as a party to proceedings, or grant permission to pursue an application, but this does not always have to be the case when a grandparent is presenting their case.
Impact on parents
One of the most recently reported cases looking at the question of grandparent contact is J and another v M and another [2024] EWHC 1156 (Fam).
Although an unusual set of circumstances, the comments and judgement are of relevance. The father was in prison for murder and the paternal grandfather and stepmother were seeking an order for contact. The judge refused the application for contact, stating the main reason was the impact an order for contact would have upon the mother, and that this would undoubtably impact upon the child.
As these cases illustrate, there are a number of cases where contact is refused not because of the impact this would have on the child directly, but because of the impact this would have upon the child’s carer, which would then transfer to the child.
It makes me wonder whether there should be a greater emphasis and focus on therapeutic work and rebuilding family relationships rather then refusing contact which will not address the root cause.
Whilst things do sometimes become easier and repair with time, they can also become more entrenched and harder to change.
It may be that the introduction of Pathfinder, which aims to completely change the way Children Act cases are undertaken, will mean there is better exploration of therapeutic work. It can only be hoped this will be the case.
The grandparents’ options
So what should a grandparent, or any extended family member, do if they are being prevented from seeing a child?
In the first instance the process is the same as it would be for a parent: they should try and resolve the issue outside of court. A referral to mediation is often the best place to start. This can open up communications and if the issue is one of a long-running family rift, mediation can attempt to repair relationships.
If mediation is unsuccessful, matters may end up before a judge and permission sought. If granted, an application for contact can be pursued.
The law is evolving (although some would say too slowly) to recognise the modern family and advances in technology through the creation of parental orders and the Human Fertilisation and Embryology Act 2008.
But it is this writer’s view that the law is still lacking when it comes to recognising and protecting a child’s links with extended family.
As a result, grandparents could be a central part in the life of a child one day – and completely removed the next.
About the author
Since joining Dutton Gregory in 2018, Jon Whettingsteel has progressed from solicitor to partner and head of the family department, a role that allows him to combine his legal expertise with his passion for supporting people during life’s most challenging moments. He is passionate about campaigning for change, particularly around grandparents’ rights, and hopes to use his career to inspire future lawyers to see their role as more than just giving advice but helping improve the legal system itself.
