02nd December 2014
Grandparents Rights in the UK
Grandparents Rights in the UK
Increasingly, grandparents are playing a larger role in the care of their grandchildren. Grandparents are often charged with babysitting, the school run, before and after school care, holiday care and looking after their grandchildren when poorly from school. The relationship between grandparents and their grandchildren can be special and treasured by both parties.
When a relationship between parents breaks down, it can result in grandparents losing contact with their grandchildren. This can be extremely upsetting for the grandparents, but also for the children who have to deal with their parents’ relationship breakdown together with not seeing a much loved member of their family.
Access to extended family members can provide children with an added layer of support when facing challenges in their family environment, together with enhancing their identity needs of knowing where they came from and which family they belong in.
What if you have been stopped from seeing your grandchildren?
If you are being denied spending time with your grandchildren, the first step would be to try and talk to the parents. By trying to negotiate with the parents, you are attempting to convey that whatever has happened between the parents is between them and you simply wish to continue your relationship with your grandchildren.
What if talking does not work?
If negotiation with the parents has failed or if they have ignored your requests, the next step would be to try mediation. Mediation is a meeting that takes place between you and the children’s parents with an impartial third party present. The mediator has no bias and is simply present to ensure that the conversation stays on track. Mediation can be a one off meeting, or a series of meetings depending on the amount of discussion taking place. Mediation is not suitable in cases where there has been domestic abuse between the parties.
What if mediation does not work or is not suitable?
Unfortunately, at present there is no such thing as ‘grandparent rights’. Sadly, although grandparents are playing a vital role in children’s lives, they are not automatically entitled to spend time with their grandchildren.
If negotiation and mediation fail, the final option is litigation. An application can be made to the Single Family Court under the Children Act 1989. As grandparents do not automatically hold parental responsibility for their grandchildren, permission of the Court is needed to make any application. This permission is sometimes titled ‘leave of the Court’.
When a Court is considering permission for a grandparent to make an application to spend time with their grandchildren, the Court will need to consider what is in the children’s best interests. This is the paramount consideration. The Court will also not make any order unless it is required and will attempt to deal with matters as quickly as possible to avoid any delay. The grandparents will need to evidence that they have a close relationship with their grandchildren and that it would be in the children’s best interests to continue to spend time with the child, or for the children to live with them.
If permission is granted for the grandparent to make an application, then an application can be made for a Child Arrangement Order. This could be a Child Arrangement Order as to who the children spend time with (formerly called a ‘Contact Order’) or a Child Arrangement Order as to who the children live with (formerly called a ‘Residence Order’). The Court will have regard to the Welfare Checklist when considering what is in the children’s best interests.
Whenever any application is made under the Children Act 1989, CAFCASS become involved. CAFCASS is the Children and Family Court Advisory and Support Service. Before any hearing takes place at Court, CAFCASS undertake background checks on the parties with the police and social services, and speak to both parties to ascertain their positions. CAFCASS will then produce a letter to the Court outlining any recommendations they have, such as a more detailed report being commissioned, further mediation taking place or reports obtained from drug and alcohol services for example. Depending on the age of the children, their views will also be obtained and taken into account, although their views will not be taken into account in isolation as other factors will also be considered.
There are two main types of contact with children, namely spending time with them directly (i.e. face to face) or indirectly (i.e. over the telephone or letters). When a Child Arrangements Order as to who the children spend time with is obtained, the grandparents are not afforded parental responsibility of the children. If a Child Arrangements Order as to who the children live with is obtained, the person whom the order is in favour of is afforded parental responsibility for the child. This means that they are able to make large decisions in the children’s life.
A grandparent may have cause to apply for a Special Guardianship Order. This is an order that states where children should live and as above, also affords a person parental responsibility. The difference between a Special Guardianship Order and a Child Arrangement Order as to who the children live with is that the person whom a Special Guardianship Order is in favour of, holds parental responsibility that is superior to that of the parents. This means that they would have the overriding decision making ability in relation to decisions such as the child’s education, name and religion.
What if the parents are not adhering to the Order?
If an Order is made by the Court and parents are not adhering to it, then an application can be made to enforce that Order. Should a person breach an Order or not adhere to an Order for no good reason, then this is treated as contempt of Court. The Court can therefore impose a sanction of a fine of up to £5,000 or a prison sentence of up to 2 years, or both.
Cartwright King is a national law firm specialising in Family Law, please contact us if you need any advice or assistance.