A Guest Blog by Frances Harris, barrister at 1 King’s Bench Walk.
For many, a loving relationship with grandchildren is one of the greatest pleasures in later life. Perhaps then it comes as no surprise that separation from a grandchild following family breakdown causes many a great deal of grief and is an increasing source of litigation. Simon Hughes, the (former) Justice Minister, has confirmed in a written parliamentary answer that last year there were, on average, seven applications a day by grandparents for a court order to allow them to spend time with a grandchild following the separation or divorce of the child’s parents.
As grandparents have no automatic right to be part of their grandchild’s life, what can they do to allow them to spend time with their grandchild, even in the face of opposition from the child’s carer(s)?
The first option may be to see if they can share the time the grandchild spends with another relative. This will only be possible if any existing order or agreement does not either expressly preclude them from being present or only provides for the non-resident parent to spend time with the child on their own.
Even if this is available, it may not be an attractive option: it may dilute much-needed time for the child to spend with their non-resident parent or, where the grandparents and child’s primary carer are not on the best of terms, it could potentially turn up the heat and threaten an agreement between parents themselves. Furthermore, grandparents on their own will not be able to look to the courts to enforce this kind of informal arrangement.
Grandparents should explore the possibility of mediation before filing an application at court. This option has some significant benefits for potential litigants: not only could it resolve their difficulties in a quicker, and, possibly, a more amicable way than going to court, it also may be possible to gain legal aid funding for mediation, attractive to those hard-pressed on a pension. The law[1] requires the parties to evidence at least attendance at a meeting giving information on mediation at or valid exemption from the same, in any event.
Before turning to court, grandparents may want to give careful consideration the impact of any application they bring on any litigation already taking place in relation to the child: for many the last thing they will want is to fuel any dispute between the parents and for a child’s relationship with their non-resident parent to be set back by their actions.
If court is the only option, grandparents should bear in mind that they will need the court’s permission to make an application for the child to spend time with them, unless the child has lived with them for at least three years, they have a court order allowing the child to live with them or they have the agreement of any person who has parental responsibility for the child[2]. When deciding whether to give the grandparents permission to make their application, the court will look at all of the issues in the cases, with particular regard to several factors including the nature of their proposed application, their connection with the child and any risk there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it[3].
If the court gives permission to the grandparents to bring their application, the case will fall to be considered in the same way as any other application for a child arrangements order, with the child’s welfare the court’s paramount consideration.
Frances Harris is a barrister at 1 King’s Bench Walk, specialising in all areas of family law. She regularly appears in courts throughout England, including the High Court and has experience of Children Act proceedings involving extended family members.
[1] Section 10 of The Children and Families Act 2014
[2] Section 10(5) of the Children Act 1989
[3] Section 10(9) of the Children Act 1989
Walk in the Woods
