The break-up of their parents’ relationship can be a distressing and traumatic experience for children. Whether their parents are getting divorced or simply splitting up, it’s often a time of uncertainty and anxiety when creating a sense of stability becomes a key part of a child’s emotional (and sometimes physical), welfare.
An important part of this stability is maintaining the key relationships in a child’s world. After their parents, grandparents often play a hugely significant part in a child’s life, from taking them to school, to babysitting and to minding them when parents are at work.
Sadly, many relationship breakdowns create disputes around agreeing where children should live and how access should be arranged. However, grandparent access is rarely considered, meaning that grandparents who have been major caregivers may find themselves denied access to their grandchildren.
In legal terms, grandparents do not currently have an automatic right to contact with their grandchildren. Ideally, access arrangements will be made amicably with the parents, or failing that, through a solicitor or mediation. If this fails, the only remaining option is to make an application to the courts for a Child Arrangements Order. When such an application is made, the Court can be asked to decide issues such as:
- Where a child will live
- When they will spend time with each parent
- Other types of access such as phone calls
The arrangements are then ratified into a Court Order.
Under current legislation, a grandparent cannot go straight to the court with an application for a Child Arrangements Order as a parent can. They must first have obtained leave (permission) of the court. When deciding whether a Child Arrangements Order should be made, the court will consider:
- The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding)
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in his/her circumstances
- The child’s age, sex, background and any other characteristic which the court considers relevant
- Any harm which a child had suffered or is at risk of suffering
- How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
If granted permission to apply, it is then the court’s decision whether spending time with the applicant will benefit the child’s welfare and wellbeing.
The legal process
Of course, few people would opt for the legal route given the choice as it is an emotionally challenging and stressful process, incurring additional expense with no guarantee of success. However, almost 2,000 Child Arrangements Order applications were made by grandparents in 2016 and the number is predicted to grow when the next band of figures are announced so it is obviously an issue that needs addressing.
In my experience as a family law solicitor, more needs to be done to safeguard grandparents’ access to their grandchildren when it is in the child’s best interests, as is often the case and many MPs are calling for a change to the law. For example, the fact that grandparents in England and Wales are required to obtain permission from the court before being able to apply for a child arrangements order sets British law apart from other European jurisdictions where no such permission is needed.
Furthermore, since the Children Act 1989 was passed into law, there has been no altering of the legislation of contact with grandparents to reflect the changing nature of family and society. It’s clear that a review is long overdue.
The guiding principle when reviewing any legislation should be what serves the best interest of the child. In most cases, maintaining a child’s relationship with their grandparent will be an important part of building a new family structure after a relationship has broken down to ensure stability and security for the child. The simple truth is, we could be doing more to make that happen.
About the author:
Lisa Mohar is a solicitor at Bray & Bray law firm (www.braybray.co.uk) and specialises in family law. Lisa is an experienced matrimonial and family solicitor. She undertakes court work at all levels from the family proceedings court through to County Court and High Court. Lisa has extensive experience dealing with applications under section 8 of the Children Act for married couples, unmarried couples and same sex couples.
Founded in 1893, Bray & Bray is one of the largest independent law firms in the Midlands with four branches employing over 100 people.Last modified: June 10, 2021