Here’s To A Merry Christmas

The role of Grandparents

Grandparents often play an important role in the nurturing of their grandchildren. As we approach the festive period, which is such a special time for so many families that we encounter, the question as to whether grandparent contact is going to be facilitated often rears its head. From a family law perspective, the Irwin Mitchell Complex Children Team of Excellence often witness the strength of love and bond between grandparents and their grandchildren, as they are often incorporated into court reports or child arrangements, facilitating handovers; and appearing as crucial additions to arrangements to ensure that children continue to receive the unique warmth that the grandparent relationship provides.  However, we unfortunately also see scenarios whereby the grandparent relationship is not championed by parents or recognised as being an important familial link for children. In these circumstances, contact between grandparents and their grandchildren may be unreasonably limited or even cease altogether. 

For those who find themselves in a situation where they are not spending time with their grandchildren, there are practical and legal steps which may be taken to resolve the situation. 

Grandparents legal rights

Sadly, the law does not give grandparents any automatic rights to see their grandchildren, despite there being recognition generally of the invaluable role that they often play in their grandchildren’s lives. Instead, grandparents are required to “jump” through an additional hoop as part of any court application, by requesting permission from the Court to bring a formal application for a child arrangements order, for example, before then being in a position to have their substantive application heard. This position differs from those who hold parental responsibility, such as parents, who may apply for a ‘child arrangements order’ without first having to seek the permission of the Court to do so.

The Court will need to decide whether to grant permission in light of the specific nature of the application before them. In doing so, the Court will also consider the following:- 

• Your connection with the child(ren);
   
• Whether there is any risk of the proposed application disrupting the children’s lives to such an extent that they would be harmed by it. 
   
• There may be other factors the court takes into account specific to the details of your case – the court has discretion in this regard.

The case law has developed to strengthen grandparent’s positions relating to applications under section 7 of the Children Act 1989. Grandparents applying for permission to apply for a child arrangements order enjoy rights under the European Convention of Human Rights, particularly a right to a fair trial (Article 6), and a right to respect for family life (Article 8).  The case law is moving to a greater appreciation for the contribution that grandparents make to their grandchildren’s lives, with a warning that Judge’s should be careful not to dismiss such a potential contribution without full inquiry. 

Should you succeed in obtaining permission from the court to make your application for an order under Section 7 of the Children Act 1989 (i.e. for contact), the court’s paramount consideration will then be the welfare of the children.  The court must take into account the statutory welfare checklist that is contained at section 1(3) of the Children Act 1989, and other factors that it considers relevant.  It must also consider whether it would be better for the children for an order to be made rather than making no order at all. 

Alternative Dispute Resolution

Prior to issuing a court application, Grandparents are encouraged to secure contact with their grandchildren through methods of ‘alternative dispute resolution’ (ADR), which differ from the formality of Court proceedings. In fact, as a prerequisite to an application to the court being made, there must be evidence that the applicant(s) has attempted mediation through the attendance at a family mediation information and assessment meeting (MIAM). 

Grandparents may benefit from the mediation process whereby an impartial, legally trained third party would seek to assist in facilitating discussions in respect of the children. The mediator would discuss as part of the MIAM the suitability of mediation and to determine whether the issues have the potential of being resolved through the process.

Here at Irwin Mitchell, we have accredited family mediators with years of experience practicing as family lawyers. Our mediators are registered with the Family Mediation Council and are also members of Resolution, following the highest professional standards. Call our team on 0345 604 4911 or contact us online for a free 30-minute consultation about your mediation options.

Contact over the Christmas period

Arrangements for children at Christmas can be difficult for separated parents to agree upon, without even bringing grandparents into the equation. It is key for parents to put themselves in their children’s shoes when considering the arrangements for Christmas and making decisions about how the festive period shall arranged. They should consider who their child would like to spend time with and how this fun can be shared between all family members. A child should not be exposed to any adult disputes, with parents championing the principle that it is in the best interests of the children to have a meaningful and secure relationship with each parent (subject to there being no safeguarding concerns e.g. issues relating to violence, abuse etc) and, by extension, grandparents. 

How we can help

If you are a grandparent and you are concerned about the arrangements with your grandchildren, you should seek specialist legal advice, and without delay.

Our national Complex Children Team of Excellence collectively has decades of specialist experience in helping grandparents successfully obtain access to their grandchildren, by:

• Securing child arrangements orders which permit contact between grandchildren and grandparents, where contact had previously been denied or restricted;
• Securing Section 8 Children Act orders to facilitate arrangements with your grandchildren, even when your child (i.e. the children’s parent) does not have access;
• Becoming a legal guardian of a grandchild, or adopting them; and
• Challenging a decision to relocate your grandchildren, where your child (i.e. the child’s parent) was not involved in the decision. 

Should you require any guidance or support from a legal perspective ahead or during the Christmas period, you are welcome to call us on 0345 604 4911 or contact us online for a consultation with a member of our family law team.