The Grandparent trap – what rights do they have?
As a family solicitor, one of the most unsatisfactory conversations I have had with a client concerned the right of a grandfather to see his very young grandchildren where the mother was refusing access after a bitter divorce from the father. This is one of the very few areas where I find it hard to reconcile the present state of the law with normal family dynamics.
When I was growing up, I remember always looking forward to Tuesday teatimes because that was the day my granddad collected me from school and I would rush to their house to help my gran bake scones for tea. It is almost impossible for me to understand a childhood without my grandparents and the very sad reality is that this is all too common for children from broken homes.
So where does a grandparent stand after the parents have divorced?
There is no automatic right in England & Wales for grandparents to see their grandchildren or to have any involvement in their upbringing. However, the Courts are starting to recognise the invaluable role they play (not least in educating us on how to bake!) and it is very rare that they would deny the grandparent access unless there is evidence of the child being placed at risk of harm.
How does a grandparent apply to the Court?
Only a person with Parental Responsibility can apply for a Court Order and as grandparents do not have this, they must first ask the Court for permission to bring an application. In order to be awarded such permission, the Judge will consider the relationship between the grandparents and the child, the nature and motivation of the application and whether the application may harm the child in anyway. If you are successful, then you can make an application for contact.
If any objections are raised by the parents to you have access to your grandchildren, or if you are unable to agree an appropriate amount of contact, you may need to attend a full hearing where you give evidence to the Court who will then make a determination.
What if I am unsuccessful or unable to apply to the Court at the moment?
Whilst it is ideal to have direct contact with your grandchildren, sometimes this is not always possible or practical. You should always demonstrate your commitment to the children by writing to them, sending greetings cards and birthday / Christmas gifts and by telephoning them. If you then wish to make an application in the future, you can demonstrate your ongoing relationship and commitment.
What if I am looking after my grandchildren on a full time basis?
If you become the resident carer for your grandchildren, you do not acquire any legal rights by circumstance and you will still need an Order of the Court to confirm the arrangements. It may also be worth considering making an application for a Special Guardianship Order as this gives you a supreme Parental Responsibility where decisions can be made for children without the need to obtain the consent of the children’s natural parents. David Cameron has recently unveiled plans to provide financial benefits to grandparents who step in and raise their grandchildren as at present there are very few financial benefits available.