How grandparents fit into the legal framework with regards to the care of children is not a commonly understood element of family law and is not as clearly defined as the parent’s rights. And yet grandparents can play a key role in how children are brought up and looked after. They can also play a major part in the event of a relationship breakdown and can be an important neutral party who a child may often turn to for support.
However, the grandparent role is largely unrecognised, and they can be deprived of access in the event of a family breakdown, but there are steps that a grandparent can take to retrieve this situation and restore previous relationships with their grandchildren.
What are a grandparent’s rights?
In England and Wales, grandparents currently have no automatic right to have contact with grandchildren or to make decisions for them. This is essentially because they have no automatic parental responsibility. The parents of the children have the right to control who their children see, so fundamentally, grandparents need to act reasonably in order for this freedom to be granted by the parents, irrespective of whether the parental relationship has broken down or not.
If no agreement can be reached over access, grandparents can apply for a court order (a child arrangement order) in order to establish a level of access to the grandchildren.
A grandparent can seek full guardianship of a grandchild if neither parent can care for the child, ie. if they are unfit or unable (through death or imprisonment for example). This would allow the grandchild to live with the grandparent and for the grandparent to be able to make important decisions on their behalf.
How does a grandparent apply for access to grandchildren?
As with most aspects of family law, the first step to take in a dispute where access will not be granted, would be to seek mediation before going down the legal route. An independent third party can help to mediate between the parents and grandparents to find a mutually agreeable situation where some access could be granted. However, if no agreement can be reached, the grandparent first needs to apply for permission to apply for the court order. This is because only those with parental responsibility can directly apply for a child arrangement order.
It is rare for a court to deny grandparents the right to apply for a court order, however, particularly if it can be seen that the grandparent has played a significant role in the child’s upbringing and that there is a strong pre-existing relationship. A court will always look favourably upon this, especially where the parental relationship is breaking down.
What happens at a court hearing for grandparent access?
Where it is necessary for a court hearing, this will involve the court considering:
- The current relationship between the grandchild and grandparents and the parents and grandparents
- The nature and circumstances of the application
- If granting access will be harmful in any way to the child
- If granting access would impact negatively on other family relationships
The court would listen to evidence from the grandparent’s solicitor to illustrate how access would enrich the lives of the grandchildren and how they would benefit from a more stable family situation. Ultimately, the primary principle of UK courts is to make decisions which are in the best interests of the child, and it recognises the value of a strong family unit. So a grandparent would need to demonstrate that their access would enable this. The court will always support a contact application that is shown to be beneficial to the emotional and psychological wellbeing of the child.
Contact Ison Harrison if you are a grandparent seeking access
If you are a grandparent who is being denied access to your grandchild or you are looking to better understand your legal position, contact our family law department at Ison Harrison. We have experts in this specialist legal field and we can offer support and guidance on your legal rights, possible legal options and how you should proceed in all situations. Get in touch with our family law experts today.
