Happily, in many families, grandparents are able to enjoy a positive relationship with their grandchildren, benefitting the entire family. In many cases, parents often rely on grandparents for help with childcare.
Unfortunately, there are also families in which the relationship between grandparents and their grandchildren is restricted. On some occasions, these restrictions may be justified or necessary, however there are occasions when they are not. When a relationship breaks down, sometimes grandparents get caught in the middle and as a result may no longer be able to spend quality time with their grandchildren.
This article aims to highlight key points for grandparents to consider when seeking to establish, or re-establish, relationships with their grandchildren as well as the factors the Court will consider when making decisions on these issues.
- What are the rights of grandparents?
Grandparents do not currently have an automatic legal right to see their grandchildren in the event of a divorce or relationship breakdown.
A strong initial approach would be for the grandparent to engage in an open and honest discussion with the parents, in the hope they can reach an informal agreement as to contact with their grandchildren. If these discussions are unsuccessful, the disputing parents should be invited to Non-Court Dispute Resolution (“NCDR”) with the grandparents, for example mediation. For this to work, both parents would have to engage and put their differences aside. Similarly, grandparents must try to remain impartial in any discussions, even if they naturally favour their own child.
If NCDR proves unsuccessful, the next step would be for grandparents to make an application to the Family Court for a Child Arrangements Order under the Children Act 1989.
- Mediation
Before any Court application can be made, grandparents must show the Court that they have attempted mediation by attending a Mediation Information and Assessment meeting (“MIAM”), unless they can prove that one of the exemptions applies.
During the MIAM, the parties will provide instructions to the mediator, who is an independent and impartial third party, regarding the issues as well as any proposed resolution. The mediator will explain the mediation process and set out all NCDR options, such as arbitration or collaborative law.
Even if the parties believe that a MIAM is not appropriate, attendance is compulsory unless one of the MIAM exemptions applies, as parties must show the Court that they have considered a non-Court route first. If parties do not complete this step, their Court application will not be issued. Even after proceedings are issued, the Court has a duty to consider, at every stage in the proceedings, whether NCDR is appropriate for the parties.
If successful, the advantage of mediation is that it avoids Court proceedings, which are time-consuming, costly and stressful for all concerned whilst helping to resolve matters in a non-adversarial way. This, in turn, is likely to help preserve the relationship between grandparents and parents. It is very much in the best interests of any child for all the important people in their life to communicate effectively and without conflict.
- What happens if mediation does not work?
As grandparents do not hold Parental Responsibility for their grandchildren, they first have to seek permission from the Court to make an application for a Child Arrangements Order.
Grandparents do not need to seek the Court’s permission if:
- the grandchild has lived with them for three years (which does not be a continuous period), however this period must not have begun more than five years before and ended more than three months before the application is made;
- the grandchild has lived with them for a continuous period of one year immediately prior to the application being made; or
- the grandchild is in the care of the Local Authority and the Local Authority has consented to an application.
When seeking permission from the Court, the following factors will be considered by a Judge:
- the nature of the relationship between the grandparents and the child(ren);
- the nature/facts of the proposed application; and
- whether there is any risk that the application and any change of arrangements would disrupt the child’s life to such an extent that they will be harmed by any changes.
The child’s welfare will be the paramount consideration of the Court when making any final decision. The Court will consider the following factors as per section 1(3) of the Children Act 1989, which is commonly referred to as the ‘welfare checklist’:
- the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
- the child’s physical, emotional and educational needs;
- the likely effect on the child of any change in their circumstances;
- the child’s age, sex, background and any characteristics of the child which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each of the child’s parents, and any other person, are of meeting the child’s needs; and
- the range of powers available to the Court under this Act in the proceedings in question.
- Special Guardianship Order
Under certain circumstances, grandparents can also apply to the Court for a Special Guardianship Order (“SGO”), which is an order under which their grandchildren permanently live with them. Grandparents will have the opportunity to apply for an SGO if the parents are unable to look after the children themselves. In certain circumstances, an SGO is a viable alternative to a Child Arrangements Order and will remain in place until the child is 18.
If an SGO is made, this order will give the grandparent(s) joint Parental Responsibility (“PR”) alongside any parent who has also has PR for the child. Special Guardians can exercise their PR to the exclusion of others who may hold PR (i.e. the children’s parent(s) but not to the exclusion of another Special Guardian. They shall be able to make day-to-day decisions for the child, for example in relation to their schooling or medical treatments. They are however unable to make decisions in respect of changing a child’s name without the consent of all those with PR or removing a child from England and Wales for a period of three months or more.
For further advice or information on this specific issue, or any other family issue please do get in touch on 07425 823 358 or drew.dennis@knightsplc.com.
We have offices across the country at Knights and our family team can assist with all family law issues.
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