The role of a grandparent has become increasingly important in modern family life. When a family dispute comes in the way of that relationship, do grandparents have any rights to protect access to their grandchildren?
The current legal position is that only people with parental responsibility, such as parents, step-parents or guardians, have an automatic right to contact with their children. Unless you have parental responsibility for your grandchild(ren), do not have an automatic right to see them.
If contact with your grandchildren is either at risk or is being denied, there are options to try to restore contact.
The first step should be to try to reach an agreement with the parent(s) refusing access. Depending on the circumstances of the case, this cold taketh form of informal negotiations between parties to attempt to agree terms of access. This approach offers considerable flexibility to meet the needs of parties, but is not always plausible particularly if relations between parties have deteriorated.
An alternative is to try mediation to identify and agree on a way forward that satisfies the needs of all parties. The mediator should be an independent, impartial third party to the dispute. The mediator should hold initial meetings with each of the parties separately to assess whether mediation is suitable to the case and for the individuals involved. If mediation is deemed suitable, the role of the mediator will be to assist those in the meeting to come to an agreement.
Should no agreement be arrived at through mediation, or where mediation is not appropriate or cannot happen because it is not agreed to by the parties, then you may seek the permission of the court to apply for a child arrangements order.
Can grandparents apply for access to their grandchildren through the courts?
If an agreement cannot be made independently, you may be able to go before the courts to apply for a Child Arrangement Order to reinstate access.
If you do not have parental rights over your grandchildren, you do not an automatic right to apply for a Child Arrangements Order. You must first seek the permission of the court.
To get permission, the court will prefer that you have attempted mediation for the purpose of settling the matter before taking legal action.
The court will base their decision on whether to grant you permission based on the child’s welfare and whether contact with you, as a grandparent, will have a positive effect on the child’s life.
The court will look at the circumstances of the case as a whole, including the relationship between you and your grandchildren, whether removal of contact will be detrimental to the children and the frequency of contact. The court generally recognises the relationship between grandparents and their grandchildren and it is only cases where abuse or violence is evidenced that Child Arrangement Orders by grandparents are refused.
How to apply for a Child Arrangements Order
Applying for a Child Arrangements Order requires specialist experience in building and presenting an effective case to the court. Professional legal advice can help navigate you through the process while ensuring you are representing your case most effectively.
To apply for permission to make the child arrangement order application, you will need to complete and a C100 form and C2 form, and submit to the local family court closest to where your grandchild lives.
A court fee is payable of £215.00 (current in 2018).
Remember, you are asking the court to make two decisions. The first is whether they will grant you permission to apply for a child arrangement order, and secondly, whether they will put the child arrangement order in place.
Once a grandparent has been granted permission to apply and the court consider their application for a child arrangement order, a copy of the application will be sent to the Children and Family Court Advisory and Support Service (CAFCASS) for initial background checks with the social services and the police. CAFCASS may also speak to any parties involved, such as the grandparents or the parents.
CAFCASS are professionally qualified family court advisors. They work with families so that they can made recommendations to the court but can also contact health visitors, schools or anyone else whom they feel can give them a better picture of the child’s situation.
Once the court has been advised by CAFCASS, they will send back the application documents to the grandparent for them to serve on those who have parental responsibility for the child(ren).
The court will set a date for a hearing, usually one month to six weeks after the date of the application.
The first hearing will be for a ‘directions appointment’ where the judge hears from all parties, the grandparents and parents, for instance. It may be the case that no decision is made at this point and the judge may ask for further information.
This information could be a further involvement with CAFCASS who will be asked to prepare a report. The case will be adjourned for twelve to fourteen weeks to allow for the report to be made to the court before any further hearing. CAFCASS may ask to speak to the children involved at this stage, as well as the adults.
When the case is heard in court, the judge will ask whether the parties involved, those with parental responsibility and the grandparents, are in agreement that a child arrangements order should be granted.
If they are in agreement, the final order can be granted, provided the judge believes that doing so would be in the child’s interest. Otherwise, the judge may decide not to grant the order.
If there is no agreement between the parties involved after CAFCASS’ involvement, the court will usually declare the case as a contested hearing. This means that all parties will be required to give evidence at a full hearing, calling witnesses if needed. On this basis, the judge will make a decision on whether to grant the child arrangement order and if so, details of the grandparents’ contact with the child.
The judge has the right to request a future review of the case to check on progress.
Enforcement of a child arrangements order
Should a child arrangements order be granted, giving you access to your grandchild, and the parent or person with parental responsibility either prevents your access or makes it very difficult for you to have contact with your grandchild, then you may apply to the family court for an enforcement order. The court may first ask that both parties enter a period of mediation before entering into further legal proceedings.
Should you seek legal advice about grandparents’ rights?
Family disputes, in particular those concerning children, can be devastating. As grandparents, you may feel removed from the pushed out of any decisions made by the parents and helpless in staying in touch with your grandchildren.
Should family discussions and mediation fail to solve the situation, grandparents may have recourse to legal action to ensure future access to grandchildren.
A family law specialist can advise you on your options based on your circumstances and the nature of the dispute and access issues, and guide you through any ensuing court process.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Before acting on any of the information contained herein, expert legal advice should be sought.