Grandparents’ rights: do grandparents have a right to see their grandchildren?
In short: grandparents in England and Wales do not have an automatic legal right to see their grandchildren. If a parent stops contact, a grandparent can ask the family court for a child arrangements order. Most grandparents first need the court’s permission to apply, which is requested on the same application form (C100). The court fee is £270, and the court decides on the child’s welfare.
For most grandparents, grandchildren are a blessing to be loved and cherished, for children, grandparents are an extremely important part of their life. Extended family that can help to build, shape and influence their future but what if you are prevented from seeing your grandchildren? Do grandparents’ rights exist?
The legal landscape surrounding this issue is intricate. It’s filled with terms like Special Guardianship Order, Court Orders, and ‘best interests of the child’. Understanding these terms is crucial. They form the backbone of the legal provisions that govern grandparents’ rights.
This article aims to shed light on these provisions. It will guide you through the legalities surrounding grandparents’ rights in England and Wales.
We’ll explore the process of applying for contact with grandchildren and the role of Court Orders and aim to provide a clearer understanding of grandparents’ rights.
Understanding Grandparents’ Rights and Legal Standing
In England and Wales, grandparents do not have automatic legal rights to see their grandchildren. This can be a surprise to many. However, this does not mean that grandparents are without any legal recourse. The law recognises the importance of maintaining a child’s relationship with their grandparents.
The Children Act 1989 is a key piece of legislation in this regard. It provides a legal framework for grandparents to apply for contact with their grandchildren.
This process can be complex. It often involves Court Orders, mediation, and a thorough understanding of the child’s best interests.
The Children Act 1989 and Grandparents’ Rights
The Children Act 1989 is a cornerstone of family law in England and Wales. It sets out the legal rights and responsibilities of parents and those with parental responsibility.
Interestingly, the Act does not specifically mention grandparents. However, it does provide a pathway for grandparents to apply for contact with their grandchildren.
This is done through a Child Arrangements Order. This order can stipulate when and how a grandparent can have contact with their grandchild.
The Role of Mediation in Grandparents’ Rights
Before an application is made to a Court, Grandparents must attend a Mediation Information and Assessment meeting (MIAM). This is to assess whether the issue can be resolved by mediation which involves negotiation with a neutral third party facilitating discussions.
Attendance at the MIAM meeting is compulsory before an application is to be made to the Court, although there may be exemptions available, for example if your grandchild is at risk of harm, there is evidence of domestic abuse, or the application is urgent.
If Mediation is possible, it’s a good route to take. Mediation can be a less adversarial and more cost-effective way to resolve disputes. It can help maintain family relationships and avoid the stress of court proceedings.
However, if mediation is not suitable or fails, grandparents can proceed to apply for a Court Order. This is where understanding the intricacies of the Children Act 1989 becomes crucial.
Applying for Contact: Steps and Considerations
Applying for contact with a grandchild involves several steps. It requires careful consideration and understanding of the legal process which, unfortunately, for grandparents can be a lengthy one.
In most cases, grandparents must first ask the court for permission to make an application for a Court Order. This is known as ‘leave to apply’, and it is requested on the same C100 application form. The court fee is £270. The Court will consider the nature of the application, the applicant’s connection with the child, and any risk that the application might disrupt the child’s life to such an extent that the child would be harmed. Where the child is being looked after by a local authority, the court also considers the authority’s plans for the child and the parents’ wishes and feelings.
A grandparent does not need permission if the child has lived with them for at least one year immediately before the application, if the child has lived with them for at least three years in total, or if everyone with parental responsibility for the child agrees to the application.
Once permission is given, the court goes on to consider the application for a Child Arrangements Order. This order sets out the arrangements for who a child is to live with, spend time with or otherwise have contact with.
The process can be complex and emotionally challenging. It is therefore crucial to seek legal advice and support throughout.
Child Arrangements Order: A Pathway for Grandparents
A Child Arrangements Order is a type of court order that regulates arrangements relating to whom a child is to live with, spend time with or otherwise have contact with. It can be applied for by grandparents, usually with the Court’s permission. If a grandparent is named in an order as someone the child lives with, they also gain parental responsibility while the order lasts.
The Court will consider all the circumstances of the case, including the child’s wishes and feelings. The child’s welfare is the Court’s paramount consideration.
Obtaining a child arrangements order can provide legal certainty for grandparents. It can ensure regular contact with their grandchildren, fostering a meaningful and ongoing relationship.
Special Guardianship Order: Responsibilities and Criteria
A Special Guardianship Order is another legal option for grandparents, but is usually only appropriate when the child’s parents are unable to look after a child and they are placed in the care of the grandparents. It gives the special guardian parental responsibility which they can exercise to the exclusion of anyone else with parental responsibility, including the parents, allowing grandparents to make most decisions about a grandchild’s upbringing.
To be granted a Special Guardianship Order, the court must be convinced that it is in the child’s best interests. The grandparents must demonstrate a strong commitment to the child, and an ability to meet their needs until they turn 18.
This order does not remove the parents’ legal connection with the child. However, it does enable the special guardian to make most decisions about the child’s upbringing without needing to consult the parents.
The Best Interests of the Child: A Central Principle
In all decisions concerning children, the Court’s paramount consideration is the child’s welfare. This is known as the ‘best interests of the child’ principle. It is a fundamental aspect of family law in England and Wales.
The Court will consider a range of factors set out in the “welfare checklist” in the Children Act 1989 to determine what is in the child’s best interests. These include the child’s physical, emotional, and educational needs, the likely effect of any change in circumstances, and the child’s age, sex, background and any characteristics which the court considers relevant, together with any harm the child has suffered or is at risk of suffering.
The Court will also consider the child’s wishes and feelings, considering their age and understanding. The child’s welfare will always be the Court’s top priority, above the rights and wishes of the adults involved.
Factors the Court Considers in Grandparents’ Applications
When grandparents apply for permission to apply for a court order to have contact with their grandchildren, the Court will consider several factors. These include the nature of the application, the applicant’s connection with the child, and any risk of the application disrupting the child’s life to the point of harm.
If permission is given, the court then decides the application itself. The Court will also consider the child’s wishes and feelings, in light of their age and understanding. The child’s welfare is the Court’s paramount consideration.
The Court will also take into account the capacity of the grandparents to meet the child’s needs, and the effect of any change in the child’s circumstances. It will also take account of the parents’ views, and any conflict between the adults that might affect the child. The Court’s decision will be based on what is in the best interests of the child.
Legal Aid and Representation for Grandparents
Legal Aid can provide crucial support for grandparents in family law disputes. It can help cover the costs of legal advice, mediation, and representation in Court. However, in disputes about seeing grandchildren, legal aid is usually only available where there is evidence of domestic abuse or a risk of child abuse, and eligibility is also means-tested and subject to the merits of the case. Legal aid is available for family mediation, subject to a means test.
Grandparents may also be eligible for legal aid if they are involved in care proceedings. This is particularly relevant if the local authority has concerns about the child’s welfare and is considering taking the child into care.
The Importance of Legal Advice in Family Law Disputes
Legal advice is essential for grandparents seeking to exercise their rights. It can help them understand the legal process, their options, and the potential outcomes. Legal advice can also help grandparents prepare for court proceedings and navigate the complexities of family law.
Having legal representation in court can also be beneficial. A family law solicitor or barrister can present the case effectively, challenge the other party’s evidence, and advocate for the grandparent’s position. They can also help the grandparent understand the Court’s decision and its implications.
The Impact of Court Orders on Grandparents’ Rights
Court orders can significantly impact grandparents’ rights. For instance, a Child Arrangements Order can grant grandparents contact with their grandchildren. On the other hand, a Prohibited Steps Order can restrict grandparents from certain actions, such as taking the child abroad without consent.
Court orders can also impact grandparents’ rights indirectly. For example, a child arrangements order setting out when a child spends time with each parent may leave less room for informal time with grandparents, which is one reason to raise grandparents’ involvement early in any parents’ dispute.
Breaching a Court Order: Consequences and Enforcement
Breaching a court order can have serious consequences. If a child arrangements order is broken without a reasonable excuse, the court can order the person in breach to do between 40 and 200 hours of unpaid work, or to pay compensation for financial loss. Serious or repeated breaches can be dealt with as contempt of court, which can lead to a fine or imprisonment. The Court can also change the terms of the order, which may further limit the grandparents’ rights.
It’s important for grandparents to understand the terms of any court order and comply with them. If they believe the order is unfair or circumstances have changed, they should seek legal advice. They may be able to apply to the Court to vary or discharge the order.
Upholding the Child’s Welfare and Grandparents’ Contributions
Grandparents’ rights in England and Wales are complex and multifaceted. They are shaped by various legal provisions and court decisions, all of which prioritise the child’s welfare. While grandparents do not have automatic rights, they can apply for contact and even parental responsibility under certain circumstances.
Grandparents play a crucial role in children’s lives, offering love, support, and continuity. Recognising and upholding these contributions, while ensuring the child’s best interests, is a delicate balance. It requires careful consideration and legal advice. Our child arrangement order solicitors can help. Start with a fixed fee consultation by calling 020 8889 3319, or send us an enquiry.
Frequently asked questions
Do grandparents have an automatic right to see their grandchildren?
No. In England and Wales, grandparents have no automatic legal right to see their grandchildren. If contact cannot be agreed, a grandparent can apply to the family court for a child arrangements order, usually after first getting the court’s permission.
Can a parent stop grandparents seeing their grandchildren?
A parent with parental responsibility can decide who their child spends time with, so they can stop contact with grandparents. If the grandparents think this is not in the child’s interests, they can try mediation and, if that fails, ask the court to decide.
What rights do grandparents have if a parent has died?
The death of a parent does not give grandparents any automatic rights. The surviving parent, or a guardian appointed by the parent who died, usually decides who the child sees. Grandparents can still ask the court for a child arrangements order, and the court will consider how important the relationship is to the child, especially after a bereavement.
What can I do if I’m being prevented from seeing my grandchild?
Start by trying to resolve it with the parents, if necessary through mediation. If that does not work, you can apply to the court on form C100, asking for permission to apply and for a child arrangements order. You must usually attend a MIAM first.
What if the child says they don’t want to see me, or we have had little contact?
The court will take the child’s wishes and feelings into account, giving them more weight as the child gets older. It will also consider your connection with the child. Little previous contact does not stop you applying, but it can affect whether permission is given and what order is made.
How long does a grandparents’ contact application take?
It depends on the court and whether the parents agree. The court first decides whether to give permission, which is often dealt with at the first hearing, around five weeks after the application. Contested cases can take several months.
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About the Author
Vasoulla Constantinou is a partner at the firm and Head of Family Law. She is a SRA regulated family law solicitor with over 20 years of experience and has been awarded a specialist accreditation by Resolution, an organisation committed to the constructive resolution of family disputes in a non-confrontational manner. Vas advises clients on all matters relating to family law including divorce, financial issues and child law. For more information visit her full profile.
