Grandparent's Rights

Having recently become a grandfather myself, I can appreciate the value that this relationship brings to my life and hopefully my granddaughter’s life.  I am also in the fortunate position of generally being able to see my granddaughter as and when I please but there are others less fortunate than myself who, for whatever reason, face difficulties in maintaining or indeed establishing a relationship with their grandchild.  The problem is,in fact, more common than people think. A published research paper has estimated that as many as 42% of grandparents lose contact with their grandchildren following the breakdown of a parental relationship.  

Whilst there is no legal presumption that there should be an ongoing relationship between a child and grandparent, the Family Courts are generally keen to ensure that these relationships are maintained.  After all, many Judges and Magistrates and grandparents themselves and are therefore be aware of the wisdom and support that grandparents can offer to the wider family.

In the event of a legal dispute arising, the first option should always be to consider whether the mediation route can resolve the cause of the problem and achieve a mutually acceptable outcome for both the caring parent and grandparent.   Not only is the mediation process likely to be a far less expensive experience than the court process,  mediation enables those involved to remain in control of their decision making and is often more likely to achieve a timely and mutually acceptable outcome.

In those cases where mediation is not suitable, because, for example, there is a disputed safeguarding or welfare issue, it may be that the court process is the only realistic option. Unless the child has lived with his or her grandparent for a period of at least three years, a grandparent will first need permission of the court to proceed with the application.  The legal test for permission is set out in Section 10(9) Children Act 1989 and Re M(Care: Contact: Grandmother’s Application) [1995] 2 FLR 86.  Section 10(9) contains a number of factors which the court is required to consider including the applicant’s connection with the child and any risk that the proposed application may have of disrupting the child’s life.  The case of Re M establishes that the court must also have regard to the merits of the application and whether it has real prospects of success.

It may be that the permission stage of the application is not opposed by the parents but if it is, the parties will be directed to file statements in support of their case which the court will then consider and hear from the parties usually by way of “submissions” and without the need for any party to give evidence.

Assuming permission is granted, the court will then consider what directions it needs to make to progress the case so that it can make a final determination of the application. The court will already have the benefit of a Safeguarding Report prepared by Cafcass which will have made some recommendations not only  in respect of the merits of the permission stage of the application but also as to what steps should be taken by the court if permission is granted.  This will often involve the preparation of  a welfare report by Cafcass (commonly referred to as a Section 7 report).  A Family Court Adviser from Cafcass will be allocated the case whose role it will be to meet with the parties and the child(ren) and make recommendations to the court as to what orders should be made in respect of contact.

If matters are not agreed at that stage, the court will usually list the matter for a Final Hearing so that all those involved can give evidence.

The court’s decision will be made with reference to the welfare checklist as set out in Section 1(3) Children Act 1989 and any relevant caselaw.  The parties’ statements should therefore make reference to the individual paragraphs of the welfare checklist and how they are relevant to the court’s decision-making.

In respect of caselaw, there are several cases which may be of relevance.  The case of Re W (A Minor)(Contact: Applicant by Grandparents) [1997] 1 FLR 793, involved a grandmother who applied for contact with her four-year-old then grandchild.  She had previously enjoyed contact when the child lived with the father (the grandmother was the maternal grandmother).  The child went to live with the mother and the mother stopped all contact. The case was eventually heard by the Court of Appeal which decided that the lower courts had gone too far in deciding that there should be no contact at all and that the question of contact, even if indirect, should always remain open.

As to whether the court should give precedence to a parent caring for a child rather than a grandchild, the case of Re B (A Child) [2009]UKSC 5 is determinative.  In that case, the Court of Appeal decided that there is no presumption that a child should live with a parent rather than, for example, a grandparent.  The correct approach is to apply  the welfare checklist with the child’s welfare being the paramount consideration of the court.  In that case, the lower court had failed to properly take account of the length of time that the child had lived with his grandmother.

Sometimes, grandparents can provide a useful means by which contact can be re-established between a child and an absent parent.  The case of Re W (A Minor) (Contact) [1994] 2FLR 441, CA is a case in point in which it was held that the grandparents’ role would be instrumental in re-establishing the parental relationship.

There is caselaw which establishes that parental hostility to contact can amount to  a significant factor in deciding that contact should not take place.  In Re B (A Child) [2012] EWCA Civ 858, the original decision to order a transfer of residence from a caring parent to a grandparent was overturned on appeal with the Court of Appeal making a clear distinction between the importance of a child being brought up by a parent(albeit an obdurate one) or by “an adult of a different generation to either of her parents”.

In a case of parental hostility, it will be for the grandparents making the application to establish that despite this, contact will benefit the child.  Interestingly, since 2014 there has been increasing numbers of grandparents securing Special Guardianship Orders in cases where the children’s parents have been found by the court to be wanting in their ability to care for their children.  As to where the future lies, there is not a wealth of Court of Appeal decisions available to point us in any particular direction, save that the importance of grandparents remaining involved their grandchildren’s lives remains as relevant now as it was when the Children Act1989 was introduced all those years ago.

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