Family Separation: Exploring Grandparent Right

Grandparents Who Are Not Seeing Their Grandchildren

There is frequently a special bond between Grandparents and their Grandchildren. When families separate, this can lead to an end of, or severe restriction to, the time grandparents spend with their grandchildren. The chance of this escalates when parents find it difficult to agree on what time the child/ren should spend with the other parent.

There may also be occasions when children live with their Grandparents. This can be due to many different reasons and through various options, such as an informal agreement or an order from the court. The focus here is on private law applications or any out-of-court options available to private matters between parents and grandparents.

What Can Grandparents Do?

Grandparents have no automatic legal right to see their grandchild: the courts are conscious of the importance grandparents can have in a child’s life. An application can be made to the court: permission must be obtained (in most cases) before the application can progress.

Who Needs Permission to Apply?

If the child(ren) have been living with Grandparents (or any other person defined as a relative in the Children Act 1989) for one year, permission is not required from the court before an order can be made that the children live with the grandparent(s). Permission will be needed if other applications are being sought under the Children Act, such as a Prohibited Steps Order or Specific Issue Order. It is important to note that the child(ren) do(es) not need to be living with the Grandparent at the time of the application, but they must have been living with the child within the last three months (10(10) CA 1989): the application will need to be made without delay.

Permission is also not required if everyone with Parental Responsibility for the child agrees that the application can be made by the Grandparents. Before making any application for permission, it is therefore worth asking those people whether they agree to the application being made.

In most cases, an application for permission will be required. The decision can be made on paper or at a hearing but, other than in exceptional circumstances, will not be made without the parents being given an opportunity to be heard by the court.

Is Permission Likely to be Granted?

When considering an application for permission, the court is not looking at the substantive application but whether it is reasonable for the application to progress. Under S 10(9) CA 1989, matters considered include, but are not limited to:

1. The nature of the application
2. The applicant’s connection with the child

• Any risk the application itself could be so disruptive that it would cause harm to the child .

Permission Granted: What Next?

Once permission has been granted, the child’s welfare becomes the paramount consideration and the welfare checklist at S1(3) CA 1989 applies. There is no presumption that a substantive order will be made, based on permission being given. When making the application, the applicant must have attended a MIAM, unless one of the exemptions applies.

The Court’s Considerations

If the application is for a Child Arrangements Order, the court could be asked to make a ‘Lives With’ or ‘Spends Time With’ order. If the application is for a Lives With order, there is no presumption towards the parents and against the Grandparents: The Grandparents would need to show there were serious concerns affecting the child’s welfare. If the application is for a ‘Spends Time With’ order, the focus moves to whether the Grandparents being in the child’s life will be in their best interest.

There is no presumption that it is in a child’s interest to spend time with their Grandparent. It is for the applicant Grandparent to show the court that it would be beneficial for the child(ren) to spend time with them  Re A (A minor) (Grandparent: contact) [1996] 2 FLR 153 .

The courts do however acknowledge that Grandparents can provide a positive relationship for a child. 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…..’.

The court will of course be looking at the relationship the Grandparent(s) has/had with the child and will consider the time that the child has spent with the Grandparent(s) in the past, as well as the importance of that relationship for the child. If one parent is not available for the child for whatever reason, the court will consider the impact of the child losing contact with one side of their family.

Other factors will also be considered by the court, such as any hostility from the Lives With parent and the effect on that parent (and therefore the child). Hostility between parties or from one party will not be sufficient alone to prevent an order being made in favour of the Grandparents. In Re S (A minor) (Contact: grandparents) [1996] 1 FLR 158 the Court of Appeal ordered that the parent’s hostility to the child spending time with the Grandparent(s) was not sufficient to prevent that happening, when it was otherwise in the interest of the child.

The court will consider the specific issues relating to each matter and the overall impact on the child’s welfare when making their decision. If the court decides that it is in the child’s interest to spend time with the Grandparents, that time will be dependent on the circumstances of each case.

As will all family matters, one must consider alternative options for resolution without making a court application. This includes mediation, the collaborative process, round table meetings or arbitration. All these alternatives require agreement from both parties to proceed so will not always be an option. If none of the alternatives can be agreed, then the court will become involved. This is usually a slow, emotional, and costly process, with final hearings taking place around 12 – 18 months after the original application.

Written by Catherine Hancock, Family Partner at Seddons. 

Catherine is a Partner at Seddons’ Family team. She is an experienced family solicitor, whose main aim is to provide good, clear advice, and find the best outcome for her clients in respect of finances, their wellbeing, and that of their children. As well as an experienced solicitor, Catherine is a mediator, hybrid mediator (which is especially helpful where one party is considered to be narcissistic), and a collaborative lawyer. She will do her best to work in a constructive and collaborative way to resolve the differences between parties, whether previously married or former cohabitees, and whether with or without children. Her experience allows her to see when this approach is not possible and court intervention is required. In such cases, Catherine aims to conclude matters in the best and most efficient way for each individual client.