What rights do I have as a grandparent?

Grandparents can play an important role in the lives of their grandchildren. How a grandparent’s role develops is often a result of the relationship they have with their own child, and their child’s partner, if there is one.

There are three primary contexts in which the issue of contact with their grandchildren may arise:

1. When the parents of the children live together and do not want a grandparent to have contact with the children;
2. When the parents of the children have separated, and one parent does not want a grandparent to have contact with the children; and
3. When the grandparents have been the primary caregivers to the children for a long period of time but the children have now returned to their parents.

In any dispute, and especially those between parents, it is the children and often the grandparents who suffer the most, with grandparents being the most likely to be left out of any contact arrangements.

There may be other circumstances such as where one parent has died, or there are concerns over the care being provided to the children by the parents where a grandparent may wish for their grandchildren to live with them, either on a temporary or permanent basis. This blog will focus primarily on what to do when contact has been stopped by the parent/s of the children.

Contact has stopped. What rights as a grandparent do I have?

As a grandparent, you do not have an automatic legal right to see your grandchildren. You can attempt to obtain contact with your grandchildren via the following means:

1. Reaching an informal, family-based agreement with the child’s parents;
2. Attempting mediation; or
3. Applying to the Court for an order.

Reaching an informal, family-based agreement with the parents

If you are in a position to do so, explain to the parent/s that you are missing the child and believe the child will be missing you too. It is important to emphasise that the child’s feelings should be taken into consideration. Depending on how far away you live, and your physical/mental capabilities, it may be beneficial for you to explain the practical and emotional support you could offer both the parent/s and children. You may also wish to remind the parents of how important the presence and influence of a grandparent may be on a child’s perception of their genetic origin, and their understanding of life, culture, and personal identity.

It is hoped an informal agreement could be reached as this would save all parties a tremendous amount of time and money and would ensure less exposure to conflict for the grandchildren. Nevertheless, in many circumstances, an informal agreement can’t be reached and the grandparents will need to resort to other methods to see their grandchildren.

Attempting mediation

Mediation is a relatively quick way to resolve disagreements between individuals. An independent, professionally trained third party (referred to as the “Mediator”) works with the parties to find a solution they all agree to. Benefits of mediation include confidentiality, a less formal process, voluntary, flexible, less expensive than court, and is usually not legally binding. It is also known to reduce stress in emotionally charged situations. There will, however, be circumstances where mediation will not be suitable, and it is highly dependent case to case. If the parent/s don’t agree to mediate, or the case is deemed unsuitable, you may need to issue an application to the court.

Prior to making an application to the court, note that unless exempt, the applicant(s) must attend a Mediation Information and Assessment Meeting (“MIAM”). This is also known as the ‘first meeting’ with the Mediator whereby they would assess your suitability for the process.

Applying to the court

As mentioned previously, grandparents do not possess an automatic legal right to see their grandchildren and after exhausting other options, may wish to apply to the court for a Child Arrangements Order. Generally, only people with Parental Responsibility (which grandparents do not have automatically) can apply for a Child Arrangements Order. However, grandparents can apply for ‘permission’ to apply for a Child Arrangements Order without needing parental responsibility.
A child arrangements order will decide where a child shall live and with whom they shall spend time.

When assessing whether the grandparents should be granted permission to make an application for a Child Arrangements Order the court will take various factors into account such as:

(a) the grandparent(s) involvement in the child’s life;
(b) the view of the child’s parents;
(c) any risk that there might be that the application would disrupt the child’s life to an extent that they would be harmed by it
(d) the nature of the application;
(e) whether contact could have a negative impact on the rest of the family.

Following permission being granted the same principles will apply as for a parent making a Child Arrangements application. The children’s welfare will be the paramount consideration of the court and it shall have regard to the statutory checklist (also known as the welfare checklist):-

1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
2. their physical, emotional and educational needs
3. the likely effect on them of any change in their circumstances
4. their age, sex, background and any characteristics of theirs that the court considers relevant
5. any harm that they have suffered or are at risk of suffering
6. how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
7. the range of powers available to the court under ChA 1989 in the proceedings in question

What to do in the meantime?

Although some may suggest attempting to contact the child directly, this is risky and is largely dependent on the child’s age and maturity and the current wishes of the parents, especially if there are current allegations against you. Whilst waiting for the court or the parents to decide whether to ensue contact with the grandchildren, we recommend always remaining calm, patient and minimising conflict. Although it is frustrating and you may feel like you are missing out on precious milestones with your loved ones, you ultimately want a decision to be made that would be in the children’s best interests. In the meantime, it is a good idea to keep birthday cards and gifts in a collection box which you can give to the children once contact is resumed.

Phoebe Roxbee is a Paralegal in our Brighton office.

If you would like to discuss your own situation with one of our Family Law Specialists please contact us.