Should access to grandchildren be easier when relationships break down?

It’s an unfortunate truth, but following a divorce or relationship break-up, it can be difficult for grandparents to maintain meaningful contact with their grandchildren. In particularly acrimonious cases, they may even be denied access altogether. With no laws currently in place to protect their rights, calls are being made for a change. Lisa Mohar, a solicitor specialising in family law at Bray & Bray law firm, looks at the issues around enabling access for grandparents when the parental relationship fails. 

Divorce and family breakdown is an emotional and turbulent period for all family members. But the traditional household make-up of two parents with two-point-four children is no longer as prevalent as it once was.  According to the Office for National Statistics, the number of people getting married is falling as more people choose to co-habit, while an estimated 42 per cent of marriages in the UK now end in divorce.

Irrespective of whether parents divorce or simply split, most relationship breakdowns create disputes around agreeing where children should live and what time they should spend with the other parent (referred to as access and/or contact).  However, grandparent access is rarely considered, which can be a serious error when striving to create a sense of stability for children during a time of significant emotional upheaval.

The changing role of the grandparent

Grandparents often play an important role in their grandchildren’s lives. They may be the main carers if/when both parents are at work, pick up or drop off children at school and babysit or regularly visit. In fact, a recent YouGov poll found that 40 per cent of the UK’s grandparents over 50 provide regular childcare for their grandchildren. Withdrawing this contact at a time of instability can be disastrous for children, yet many grandparents find themselves denied access to their grandchildren, As a result of this, and the changing family model, more and more grandparents are applying to the courts for access.

The damaging impact of the dated current regulations have been featured in the news and this has led to MPs calling on the government to amend the Children Act, making grandparents’ rights to see their grandchildren protected within law. It is clearly an emotive topic, but do the laws really need changing and if so, what to?

Grandparents’ current rights 

In legal terms, grandparents do not currently have an automatic right to spend time with their grandchildren. If an agreement cannot be made by dealing directly with the parents, through a solicitor or through mediation, the only option remaining for the grandparent would be to make an application to the courts for a Child Arrangements Order. This is a legal process which decides issues such as where a child will live, when they can spend time with each parent and what other types of contact can take place such as indirect (i.e. .phone calls) or direct (face to face).

Under current legislation, a grandparent cannot go straight to the court with a Child Arrangements Order application in the same way that a parent can. An application cannot be made until they have obtained leave (permission) of the court.

When deciding whether a Child Arrangements Order should be made, the court will consider:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding)
  • The child’s physical, emotional and educational needs
  • The likely effect on the child of any change in his/her circumstances
  • The child’s age, sex, background and any other characteristic which the court considers relevant
  • Any harm which a child had suffered or is at risk of suffering
  • How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs

If granted permission to apply, the grandparent then makes their application and the court will decide if spending time with the grandparent/s in question will improve the welfare of the child and is in the child’s best interests

Taking legal action is emotionally challenging and comes with stress and pressure, not to mention the time and cost in legal fees. Furthermore, there’s no guarantee that the application will be successful.

What are the proposed changes?

Almost 2,000 Child Arrangements Order applications were made by grandparents in 2016 and the number is predicted to show growth in 2017 when the figures are revealed later this year.  In my experience as a family law solicitor dealing with a significant and varied number of disputes, there is simply not enough being done to safeguard grandparents’ access to grandchildren.

As a result, many MPs are calling for a change to the law to protect the unique grandparent/grandchild relationship. We simply can’t ignore the fact that in 2018, many grandparents play an essential role in children’s development. Their place in the family brings all kinds of advantages and enrichment to a child’s life – as well as to society as a whole.

The fact that grandparents in England and Wales are required to obtain permission from the court before being able to apply for a Child Arrangements Order sets British law apart from other European jurisdictions where no such permission is needed. It also adds another layer of expense, stress and uncertainty to an already emotional process.

Since the Children Act 1989 was passed into law, there has been no altering of the legislation of contact with grandparents to reflect the changing nature of family and society and it is clear that this area of legislation does need a review.

If Child Arrangements Orders and the legal process are truly designed to protect the best interest of the child, the significance of the grandparent relationship needs to be properly acknowledged and our outdated laws should be changed to reflect that.

About the author: 

Lisa Mohar is a solicitor at Bray & Bray law firm (www.braybray.co.uk) and specialises in family law.  Lisa is an experienced matrimonial and family solicitor. She undertakes court work at all levels from the family proceedings court through to County Court and High Court. Lisa has extensive experience dealing with applications under section 8 of the Children Act for married couples, unmarried couples and same sex couples.

Founded in 1893, Bray & Bray is one of the largest independent law firms in the Midlands with four branches employing over 100 people.  

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