Grandparents access rights to their grandchildren after a break-up

Grandparents access rights is an important issue for those who have limited contact with their grandchildren after there has been a family break-up.

Grandparents play an invaluable role to a child’s upbringing, but often when relationships break down, grandparents can find themselves having limited or no contact with grandchildren.

As Conservative MP Nigel Huddleston has said:

“When access to grandchildren is blocked, some grandparents call it a kind of living bereavement.”

It is important for grandparents to be aware of their rights in relation to spending time with their grandchildren and the options they have available if they are denied contact with their grandchildren.

What rights do grandparents have when it comes to their grandchildren?

Under the Children Act 1989, grandparents do not have an automatic right to see their grandchildren.

However, the courts recognise the importance grandparents can hold in a child’s life and have therefore created mechanisms to enable contact between grandparents and grandchildren.

If a parent refuses to allow grandparents to see their grandchild, what steps can be taken to resolve this?

There are various options available to grandparents who are denied contact with their grandchildren, including:

• Negotiate with the family/carers: Communication is key. Communicating with the Childs’s parents and explaining to them the valuable role you as grandparents could play in the child’s life and the practical help you can offer (e.g., childcare) may help both parties to come to a mutual settlement.
• Mediation – If negotiations fail, then mediation is a tool that can assist all parties’ involved to discuss matters and come to a resolution. In any event, mediation must be attempted before the court will allow any court applications. The only time mediation is deemed unsuitable and therefore not necessary to be allowed to make an application to the court, is if there has been domestic abuse between the parties.
• Child Arrangements Order – If mediation is unsuccessful grandparents will need to apply to court for permission/leave of the court to apply for a Child Arrangements Order to spend time with their grandchildren. Upon permission/leave being granted by the court, the application will be dealt within the court arena with anybody that has parental responsibility for the children being included as respondents to the application. 

If you are a grandparent being denied contact with your grandchildren, you can seek legal advice today on the options available to you by contacting our family team. 

How can mediation help dispute between parents and grandparents? 

Mediation encourages parties to discuss their concerns and reach an agreement out of court with the help of a neutral third party, aka a “mediator”. 

Generally, the first step to mediation will be a Mediation Information and Assessment Meeting (MIAM). This aim of this meeting will be to explain the mediation process and the types of mediation available. Both the party seeking contact and the children’s parent/s will be invited to a MIAM. If mediation is appropriate/agreed then sessions together will be arranged. 

If mediation is not suitable or fails to progress, the mediator will provide a MIAM Certification which will enable the grandparents to apply to the court for permission to apply for a Child Arrangements Order to spend time with their grandchildren. 

If one of the parents has been denied access, can the grandparents still apply to see the child? 

Even if one of the parents has been refused the grandparent/s contact with the child/ren, the grandparent can still apply to see the child. This is because the court will consider such applications independently from a parent’s application. 

While applications are considered separately, where this is a conflicting application between the parents and grandparents, the parent’s application will normally take priority unless there are exceptional circumstances. 

You can get specialist legal advice today on the strength and merits of your application by contacting out specialist Family Law team. 

What does the court take into account when considering an application from grandparents to see their grandchildren? 

When making an application for a Child Arrangements Order to spend time with a child, the court will consider a range of different factors. 

The most important factor a court will consider is if the Order is in the child’s best interest. To determine this, the court will consider all the child’s circumstances and will only make a Child Arrangements Order if they consider it better for the child than no Order at all. This is the No Order principle. 

The child’s welfare is always the court’s paramount consideration. This was emphasised in the case of Re A in which the court of Appeal stressed that just because the grandmother had succeeded in obtaining leave to apply to the court for a contact order, this did not mean there was a presumption that she should be granted the Order, the court had to consider what was in the child’s best interest. 

Other factors the court will consider include: 

• The ascertainable wishes and feelings of the child (considered in light of their age and understanding). 
• The child’s physical, emotional and educational needs. 
• The likely effect on the child of any change in circumstances. 
• The child’s age, sex, background and any characteristics which the court considers relevant. 
• Any harm that the children have suffered or are at risk of suffering. 
• How capable the Applicant is of meeting the children’s needs. 
• The range of powers available to the court. 

These factors encourage the court to consider every option, including not making an Order at all. The court is not limited to the factors above and may consider other factors relevant to the child and their circumstances. 

After the Child Arrangements Order has been granted, the court will consider the type of contact necessary between the grandchild and grandparent. This can be direct or indirect contact. In deciding the most appropriate type of order, the court will consider: 

1. Their connection with the child. 
2. The nature of the application to court. 
3. Whether there is a risk that the application would disrupt the child’s life to the extent it causes them harm. 
4. The views of the parents. 

Jordans Solicitors – Expert Family Law Solicitors 

For more advice and information in relation to grandparents’ rights and Child Arrangements Orders, please contact our team of experts on 01924 387110 and ask to speak to a member of the Family Law team.