Statistics have shown that grandparents play a vital role in the upbringing of their grandchildren. One in three families rely on grandparents for child care. Sadly, it has been found that 42% of grandparents lose contact with grandchildren following separation. This article will discuss the steps that grandparents can take to maintain contact with their grandchildren when parents of the subject child(ren) separate.
Unlike the child(ren)’s parents, grandparents have no automatic legal right to see their grandchildren. If Grandparents lose contact with their grandchildren following the separation of the children’s parents, there are two options; attempting to reach an agreement with regard to contact arrangements or having to take legal action in a bid to resolve the issue.
Opening a dialogue with the family members involved should be the first step towards resolution and attempting to work together to ensure the children are not deprived of a relationship with their grandparents. You could write to the parent who has refused contact explaining your wishes to maintain contact with the grandchildren and that you can offer practical help in their upbringing and childcare responsibilities. If it is not possible to reach an agreement through direct discussion or through mediation, the only option that remains is to make an application to the Court.
The law allows only those with parental responsibility to apply for Child Arrangement Orders (CAO) as of right under section 8 of the Children Act 1989. Unless the child has lived with the grandparents for at least a year prior to the application, the grandparent(s) will have to apply to the court for permission in order to apply for a Child Arrangements Order. The court will look at the nature of the application, the applicant’s connection to the child and any risk of the application(s) disrupting the child’s life.
The nature of the application relates to the reason why the applicant is applying. The court will look at how often the grandparents used to see the child, on what occasions they would have contact and how they spent this time together. The court could also take into account the wishes of the child through a CAFCASS report. The risk to the child is likely to be considered in cases where there is genuine concern for the welfare of the child. The courts have demonstrated on a number of occasions that they are willing to maintain the status quo. That is, to maintain stability in a child’s life and to make sure that there is as little disruption as possible.
Child arrangement orders are divided into residence and contact. The former is related to where and with whom the child is to live on a daily basis and the latter refers to whom the child might have contact with. Contact can be either direct (face-to-face contact, overnight stays etc.) or indirect (letter, messages, Skype calls etc.). If there are concerns over safety or harm to the child, contact can also be supervised at a designated contact centre.
The process can be divided into five stages; mediation, applying for permission, making an application for a Child arrangements order, awaiting the CAFCASS report and then attending the First Hearing. In every case concerning children, the welfare of the child is the paramount consideration. The court will consider the welfare checklist found in S1(3) Children Act 1989 which includes the following (“his” is used but it could be “her”, of course!);
- The ascertainable wishes and feelings of the child concerned (considered in the light of his and understanding);
- his physical, emotional and educational needs;
- the likely effect on him of any change in the circumstances;
- his age, sex, background and any characteristics of his which the court considers relevant;
- any harm which he has suffered or is at risk of suffering
- how culpable each of his parents, and any other person in relation to whom the court considers relevant;
- any range of powers available to the court under this Act in the proceedings in question
There is no presumption in favour of a grandparent. The requirement for leave may, however, deter grandparent(s) from applying. The court has made clear that in a discussion of a child’s upbringing, there is no hard and fast rule that a child must live with their natural parents or one of their parents (Re B EWCA Civ 545). Decisions will be made only after considering the welfare of the child. Each case will be assessed on its own individual merit and therefore legal advice should be sought before making an application.
Arjun Sreedaran, rhw Family Solicitors in Guildford