Grandparents’ rights are an important and often overlooked right to consider when divorce is looming. Children can benefit enormously from regular contact with grandparents, as well as other members of their extended family. Indeed, getting together with family can be a hugely joyous experience and can help children feel part of a larger, loving community. Many grandparents play a key role in the daily upbringing of their grandchildren too, from helping with school runs, having them to stay overnight on a regular basis or providing financial support.
Sadly, such relationships can be put at risk if, for example, a couple separates or gets divorced and one parent reduces or puts a stop to their children’s contact with their former parents in law. This can be a hard and unrecognised consequence of a marriage or civil partnership breaking down acrimoniously. Grandparents can often be the first family members to be alienated when a child’s parents’ relationship begins to come under pressure, and the grandparents’ rights are often one of the last to be thought of.
They can also lose contact if one spouse refuses to let the other see their children – this will clearly have a knock-on effect on the other spouse’s wider family. In some cases, a court can rule that grandparents and other family members can still see their grandchildren even if one or both of their parents cannot. At all times, the welfare of the child must be of paramount importance.
Of course, the change in routine and access to grandchildren could be down to very good reasons – where there is a threat to the children’s welfare, for example, or another safeguarding concern. Grandparents are not automatically entitled to contact with grandchildren in England and Wales for this very reason. Neither do they have automatic parental responsibility, nor can they gain this by applying for a Parental Responsibility Order.
That said, there is legal provision for grandparents to apply for an order to allow them to spend time with their grandchildren, under certain circumstances. Of course, where possible and safe, it is always preferable for the separating couple to come to a mutually agreeable arrangement for access and visits before turning to the law courts to settle any disputes.
What grandparents’ rights can you apply for?
While grandparents cannot apply for a Parental Responsibility Order, as already stated above, they can still apply for a Child Arrangement Order under the Children’s Act of 1989. This sets out the time that they can spend with grandchildren. Leave of court is required before such an application can be pursued, but this is normally a straightforward procedure if the grandparents can show a high enough level of commitment and involvement in the children’s lives over a longer period of time.
During the hearing that will follow an application, the court will consider a number of factors before making its decision around grandparents’ rights and access to grandchildren. First of all, the existing relationship between grandchildren and grandparents will be examined – evidence of harmful or coercive behaviour will negate access being granted. The nature of the application will also be considered. For example, whether it is being made with an express desire to hurt one or both of the parents or the children, or for unlawful gain. The court will also look at whether or not continued contact would impact negatively on the rest of the family.
The parents, or main caregivers of the children are legally entitled to raise objections to a grandparent’s application to see their grandchildren. In such cases, they must provide evidence as to why they do not wish contact to continue and attend a hearing. Solicitors can act for both sides, helping to gather evidence and present their client’s case. Depending on the age and capabilities of the children involved, their opinions may be sought about the matter and taken into account when the court makes its final decision.
Mediation and collaboration
It is in everyone’s best interests, especially for the children, for such disputes to be settled amicably and without having to go to court if at all possible. A family solicitor can arrange for mediation to take place, with a neutral, trained mediator helping both sides come to an acceptable arrangement, and to ensure that the grandparents’ rights are respected without upsetting anyone else in the process, especially the children. This approach often takes much of the emotion and tension out of proceedings and allows decisions to be made for the benefit of the children and for the sake of moving forward with the family’s new situation.
If you need support with the mediation process, or you are uncertain of what your rights to see your grandchildren are after a difficult divorce, contact Shortlands to get more support.