‘Fragmented Families’: Seeking Practitioner Insights into Private Law Matters Where Grandparents are Pursuing Contact with Grandchildren’

This article was written by Dr. Charlotte Bendall (University of Birmingham) and Dr. Samantha Davey (University of Essex).

Dr. Charlotte Bendall is an Associate Professor at Birmingham Law School, University of Birmingham, UK.

Dr. Samantha Davey is a Lecturer in Law at the University of Essex.

Both lead on the ‘Fragmented Families’ project, which examines grandparents’ experiences of seeking contact with grandchildren via mediation and/or the legal process.  Both are also key figures within the Family Law Reform Now network, which seeks ‘on the ground’ change within the area of family law.

Grandparents can perform an important role in the lives of their grandchildren, and yet, sadly, struggle to maintain contact where family relationships break down. Issues can frequently occur post-divorce, with disputes between parents filtering through, especially to paternal grandparents.

In fact, recent research from the Nuffield Family Justice Observatory suggests that as many as 10% of private law applications to the family court each year involve people who are not parents, such as grandparents.

Despite this, very little is currently known about the experiences of those grandparents within the legal system. The ‘Fragmented Families’ project, led by Dr. Charlotte Bendall, Associate Professor at Birmingham Law School, and Dr. Samantha Davey, Lecturer in Law at the University of Essex, intends to address some of the unknowns within this area.

Aiming to speak to practitioners whose workload includes cases involving grandparents, it seeks to generate knowledge which, in turn, can feed into guidance as to how best to advise clients in these kinds of matters.

The researchers recently received Arts and Humanities Research Council funding to hold an event with interested stakeholders (including practitioners, mediators, and grandparent support groups) to shape the agenda of the project. As a consequence, issues that the work now strives to consider include the following:

1. The legal barriers that grandparents may face in attempting to obtain contact with their grandchildren (for example, the lack of an automatic right to contact, and the need to obtain leave before being able to make a court application). This may include financial constraints, with the costs of legal representation and associated expenses presenting barriers for many grandparents. It may also include exploring the value attributed by the legal process within England and Wales to grandparent/grandchild relationships, especially in comparison to those between parent and child. Indeed, how the law should/might treat the relationship between grandparents and grandchildren sparks interest in light of developments in international jurisdictions; for instance, in Italy, the Supreme Court of Cassation found earlier in the year that grandchildren cannot be forced to visit their grandparents.

2. The embeddedness of the grandparent/grandchild relationship in the context of wider family relationships (and conflict). If parents are themselves in disagreement, they may be unwilling to facilitate, or support, contact, with grandparents getting ‘caught in the cross-hairs’. Should warring parents (who have parental responsibility) actively decide to limit or deny contact, grandparents may be left with limited options to enforce continued involvement with those grandchildren. The project will examine the ways in which disputes between parents themselves can create difficulties for grandparents who seek contact with grandchildren, and to begin thinking about how this might be addressed.

3. Alternatively, in other cases, parents may oppose contact due to contrasting values that they may have with the grandparents, and/or a breakdown in communication. This research will consider how best to improve relations, and ensure that all parties are able to express their intentions or concerns effectively, either through the legal system or via routes such as mediation (which is important, given recent moves towards mandatory mediation).

4. Our stakeholders additionally identified misunderstandings by grandparents around the law itself. Grandparents were suggested to have a limited awareness of the legal system, which can make it difficult for parties in these disputes to ‘bargain in the shadow of the law’.

5. Our work to date has indicated that matters involving grandparents may entail heightened emotions, and be more confrontational, than other disputes over children. Grandparents involved in such cases might well experience emotional distress due to the potential loss of connection with their grandchildren; dealing with these emotional challenges whilst navigating legal and practical difficulties can be overwhelming. This research seeks to consider the effectiveness of legal processes in accommodating/ accounting for these emotions, ultimately to assist lawyers in knowing how to support grandparent clients.

6. We will moreover investigate the extent to which the wishes and feelings of grandchildren can/should feed into decision-making in these matters, bearing in mind the need for the child’s best interests and welfare surely to remain at the forefront.

This list is, however, inexhaustive, and it is of course the case that challenges faced by grandparents in disputes over contact can vary based on individual circumstances. The researchers therefore wish to learn more about how these grandparents are navigating the legal system, and to identify any other obstacles that may be faced.

Over the coming months, the researchers plan to conduct in-depth, face-to-face interviews with family solicitors who practise in England and Wales and who have experience of working on grandparent cases. These interviews will last for up to an hour and be held in a mutually convenient location, and they will be in addition to speaking with mediators and grandparents themselves. The data from the interviews (themselves funded by a grant from the Society of Legal Scholars) is intended in due course to generate guidance for professionals who support grandparents seeking contact, either through the legal process or through mediation.

If you are interested in participating in an interview, and feeding into this important research, please contact Samantha on smdave@essex.ac.uk.

To see a previous article by Dr Charlotte Bendall and Dr Samantha Davey click here.