Last Sunday (5th October) was Grandparents’ Day in the UK. I am sure it’s mainly a day which has been manufactured by the flowers and cards industry, but it does give us an opportunity to reflect on the value that grandparents give to our society and to consider whether they have any rights in relation to their own grandchildren?
In cases where parents have separated, and one set of grandparents are not being allowed any contact with their grandchildren (or even in cases where the parents remain together, but have perhaps fallen out with the grandparents), we are often asked if they have any rights to demand to see their grandchildren? The straight answer is, that they don’t.
However, under s.8 of the Children Act 1989, they do have the right to apply for ‘Leave’ – which simply means ‘permission’ – to bring an application for a child arrangements order to spend time with their grandchildren.
When considering an application, the court will consider whether it’s in the child’s best interests to allow such an application to proceed. The initial application for leave to apply will be considered in the context of the Human Rights Act, and in my experience, where a grandparent can show they have previously had some involvement in the child’s life, it is unlikely to fail.
Often in cases where the parents have separated and there is a hostile relationship between them, so that one parent is not allowing the other to spend time with the child, those grandparents also miss out. One of the best ways of ensuring the grandparents don’t miss out, is for them to accept that it is important for their son or daughter to reach agreement with the other parent to resolve arrangements. If that doesn’t work, they might be able to bring court proceedings, but with the NCDR rules, the focus is moving away from court, where possible. But the grandparents’ time with the children can be agreed as part of that.
Too many attempts at agreeing too many different arrangements or court applications by competing family members, very often causes more hostility and the parent who has main care, may dig his or her heels in even more. So it’s important to balance this.
Grandparents need to remember that parents have the right to make decisions about their child’s upbringing including who he or she sees. However, a child has a right to associate with other family members and to enjoy a family life, which includes their grandparents. It may be helpful to point this out to the parent in a tactful way, and suggest that they should have in mind the benefits to a child that these relationships can give.
Ultimately a court may make an order for the child to spend time with grandparents and other family members, but legal proceedings should always be the last resort.
In the first instance, mediation may help, by talking through the concerns and trying to find a solution, and understanding everyone’s position.
If you want to explore this further, please contact us and make an appointment to see one of our specialist children lawyers.
Ruth Hawkins, Partner
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