Money & Rights
Grandparents access rights
Family law solicitor Lisa Mohar makes the case for strengthening access rights for grandparents when their grandchild’s parents split
The relationship between a grandparent and their grandchild is unique. With family dynamics changing and more fluid domestic situations becoming the norm, maintaining the relationship between the older and younger generations becomes even more crucial.
With around 42 per cent of marriages in the UK ending in divorce and many couples choosing to have children out of wedlock, grandparents can find themselves in a difficult position, often unable to see their grandchildren when their own child’s relationship breaks down.
With around 42 per cent of marriages in the UK ending in divorce and many couples choosing to have children out of wedlock, grandparents can find themselves in a difficult position, often unable to see their grandchildren when their own child’s relationship breaks down.
In cases where the child or children have a close relationship with a grandparent, this can be especially unsettling at a time when they most need stability and the reassurance of familiarity.
A major caregiver
In many families the grandparent is an important caregiver. In fact, the involvement of grandparents in their grandchildren’s lives has increased as more mothers go out to work. A YouGov poll found that 40 per cent of the UK’s grandparents over 50 provide regular child care for their grandchildren.
The issue of grandparent access has attracted media attention, with some high profile cases making headlines. As a result, some MPs have called on the government to review the Children Act, with a view to including grandparents’ rights to see their grandchildren within the law.
What rights do grandparents have?
In legal terms, grandparents do not currently have an automatic right to spend time with their grandchildren. Access arrangements may be made by dealing directly with the parents, through a solicitor or through mediation.
Failing that, the only remaining option is for the grandparent to make an application to the courts for a Child Arrangements Order. This is a legal process which decides issues such as where a child will live, what time they spend with the other parent and what other types of contact can take place.
However, under current legislation a grandparent cannot go straight to the court with an application for a Child Arrangements Order in the same way that a parent can. An application cannot be made until they have obtained leave (permission) of the court.
What influences the decision?
The child’s welfare will always be the primary concern. So, when deciding whether a Child Arrangements Order should be made, the court will consider
1) The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding)
2) The child’s physical, emotional and educational needs
3) The likely effect on the child of any change in his/her circumstances
4) The child’s age, sex, background and any other characteristic which the court considers relevant
5) Any harm which a child had suffered or is at risk of suffering
6) 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, the grandparent then makes their application and the court will decide if spending time with the grandparent/s will improve the welfare of the child.
A last resort?
British law differs from other European jurisdictions by requiring grandparents in England and Wales to obtain permission from the court before applying for a Child Arrangements Order. Furthermore, there has been no change in legislation around grandparent access since the Children Act 1989 was passed into law. Almost 30 years on, it seems clear it’s time for a review.
Taking legal action is usually considered a last resort by most people, especially when dealing with family disputes which can be particularly emotional. It also incurs additional expense, with no cast-iron guarantee of success.
However, it is obviously a significant issue as almost 2000 Child Arrangements Order applications were made by grandparents in 2016, with figures expected to show an increase when the 2017 statistics are announced.
There is not enough being done to safeguard grandparents’ access to grandchildren. We shouldn’t underestimate the role many grandparents play in a child’s life and personal development as well as their care. The connection between generations can only be a good thing for a family, providing important role models for individuals – and, ultimately, for our society.
Lisa Mohar is an experienced matrimonial and family solicitor who works for Midlands-based law firm Bray & Bray (www.braybray.co.uk) She undertakes court work at all levels, from family proceedings 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.
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