What legal rights do grandparents have to see their grandchildren? (ad)

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Cardiff Mummy Says is delighted to be working with CJCH Solicitors on an ongoing series of articles exploring legal matters relating to families. The series has already covered how to appeal a school admissions decision if your child didn’t get into your first-choice school; why it’s so important for parents to make a will; as well as where families of school-age children stand if they go on a term-time holiday and workplace rights for parents.

This month Sally Perrett and Jodi Winter from CJCH’s Barry practice offer their expertise on what rights grandparents have to see their grandchildren where a relationship has broken down and the grandparents are suffering by having limited or no contact with their grandchildren.

Please note that while all articles will be written in good faith by legal experts using the latest laws in Wales and England each legal case is different and these articles are not a substitute for individual legal advice.

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Grandparents – what rights do they have to see their grandchildren?

As the festive season draws nearer we are all considering our holiday plans which no doubt will include Christmas dinner with the family or a family Boxing Day party. But what rights do grandparents have to see their grandchildren where a relationship has broken down and the grandparents are suffering by having limited or no contact with their grandchildren?

What are grandparents’ rights?

Unfortunately, grandparents do not have an automatic right to see their grandchildren. The Family Court does recognise however that grandparents play an invaluable role in many children’s lives and there are mechanisms for grandparents to ask for contact with their grandchildren.

Before considering an application to court for access to a grandchild, grandparents should always try to reach an agreement with the parents or carers of the child by discussing the issue between them. If this is not felt to be working, they could consider approaching a solicitor to write to the parent or carer withholding contact and stating their intention to seek mediation and possibly an application to the court if a decision cannot be reached amicably. It could be that the parent withholding contact then realises the seriousness and significance of the grandparents wish to have contact with their grandchild or grandchildren.

Before the court would consider an application from a grandparent they must have tried mediation with the parent or carer of the child through a recognised family mediation service or solicitor who offers mediation. If this has not been successful, then an application to the court for a Child Arrangement Order should be made.

Grandparents’ rights regarding child arrangements orders

A grandparent can make an application to the court for a Child Arrangement Order much in the same way as a parent who is not able to exercise contact with their child in the way that they would wish. The only difference is that if a grandparent does not have ‘parental responsibility’ for their grandchild they would need the permission of the court or ‘leave’ to apply for the order.

The court would consider factors such as:

• the involvement of the grandparents in the children’s lives
• the nature of the application
• the views of the parents
• whether the application may be potentially harmful to the child

The court would look at each case individually and decide whether permission should be granted to the grandparents to make the application. If the grandparents are successful in obtaining permission to apply for the order, they could apply for a contact order through the court to gain access to their grandchild.

If one, or both parents were to raise objections, they would be likely to have to attend a full hearing in which both parties can put forward their evidence. It is essential that sound legal advice is sought at this stage as they will need to persuade the court that there is a meaningful and on-going relationship with the grandchild or grandchildren which significantly benefits their lives.

The court would always consider the child’s circumstances and would only make an order where it was considered better for the child than making no order at all. For example, the court might have to weigh up whether continuing contact with the child might have a negative impact on the rest of the family relationships. It is only in extreme circumstance that a court would refuse access to grandchildren.

Grandparents’ rights after the death of a parent

Grandparents’ rights do not include an automatic right to care for their grandchildren upon the death of one or both parents.

An uncle or aunt of the child may be more naturally a carer for the child from an age point of view, but often uncles and aunts have existing commitments to their own children. In these cases, grandparents may be better placed to take over the child’s care. Usually, families make these decisions and arrangements between themselves if not provided for in the parents’ will.

Again, in this circumstance, if grandparents were to feel side-lined or unhappy with the decisions made they could take steps to follow the procedure above in the same way although asking the Court to make a Child’s Arrangement Order for the children to live with them as opposed to simply having contact with them.

We have previously written about the importance of parents with children making a will that considers who they want to appoint as a guardian for their children if they were to pass away. Parents with young children should always make sure that these provisions have been considered and in the absence of a physical will at least discussed with their family members.

Grandparents’ rights – adoption and foster care

If in the very unfortunate circumstances a child’s parents were unable to look after them or care proceedings were to be issued by the local authority, then it is possible for grandparents to be appointed as Special Guardians for their grandchildren.

A Special Guardianship Order provides the Special Guardians with parental responsibility which can be used without consulting others who still have parental responsibility, e.g the child’s parents.

If a grandparent is put forward as a Special Guardian, then the local authority will undertake an assessment to evaluate whether they would be suitable to care on a long- term basis. A Special Guardianship Order is intended to provide the child with a permanent placement until they reach the age of 18.

A parent or someone with parental responsibility is able to make an application to the Court to discharge a Special Guardianship Order if they are able to show that there has been a significant change in their circumstances since the Special Guardianship Order was made. Matters could become more difficult for grandparents after their grandchild is fostered or adopted.

If a child were to be taken into care, the local authority has a duty to promote contact with the child’s birth family, provided it is consistent with the child’s welfare. Unfortunately, contact with grandparents is rarely seen as a priority by Children’s Services as they must give parents contact first consideration. Therefore, any grandparents’ rights can sometimes become redundant unless the grandparents actively put themselves forward to be assessed to care for the child.

The local authority would undertake a full and thorough assessment of any grandparents wishing to care for their grandchildren if the local authority believed that this was not an option for their parents in the future. The process can be slow and difficult for grandparents in the absence of automatic legal aid and the pressure on Children’s Services, however if the grandparents can offer a stable and loving home for the grandchildren it is likely that their assessment would be positive.

In the extremely unfortunate event that a grandchild was to be adopted due to alternative carers not being assessed positively or available within the family, it is possible that an order providing for contact with the grandparents could be made at the same time as an adoption order. This would mean that following adoption, the child would still be able to spend time with their birth grandparents. In reality however, this is very rare unless the adoption is within the family.