The OnlyDads office is frequently talking to Grandparents concerned that they no longer get to see their Grandchilren. So it is with much gratitude that we thank Hunters and Jo Carr-West in particular for this well written and valuable article on Grandparents and Family Law.
The statistics showing the role grandparents play in the modern family are eye opening. The figures collated by national charity Grandparents Plus suggest that one in four working families rely on grandparents for childcare, worth an estimated £3.9 billion per year. In sad contrast to this, an estimated 1 million children lose touch with their grandparents following their parents’ separation. If grandparents are playing an increasingly important role for families during happier times, why is the number of children who lose touch with their grandparents so high?
It is not an easy question to answer and each family has its own dynamic that is fundamentally altered by relationship breakdown, which impacts not only on the parents and the children at the centre of that breakdown but on their wider family and support networks. This article focuses on the legal position of grandparents who are keen to ensure that their relationship with their grandchildren survives.
Legal action should always be a last resort; many grandparents will be able to work out arrangements for contact with their grandchildren with their child’s former partner through direct discussions, family therapy, or mediation. Where such avenues have not worked or are not appropriate, grandparents seeking to preserve or re-establish their relationship with their grandchildren are able to look to the Court for assistance.
Most grandparents, however, will not have an automatic right to make an application to the Court for contact with their grandchildren, and so are faced with a two stage legal process. The first stage is an application for permission to apply for contact with the child, the second stage is then, if permission is granted, going on to make that application for contact. The attendant emotional and legal costs of protracted proceedings might go some way to explaining the number of grandparents who lose touch with their grandchildren on family breakdown.
For those who have the means and energy for the legal process, the starting point for most is the application for permission (described in the Children Act 1989 as an application for leave). The Court will decide whether a grandparent should be given permission to make an application for contact by looking, in particular, at the following factors:
• What is the nature of the application – i.e. what contact is being proposed?
• What is the grandparent’s connection with the child?
• Is there a risk that the application would disrupt the child’s life to the extent that the child would be harmed if the grandparent were given permission to make it?
• If the child is looked after by a local authority – what are the local authority’s plans for the child’s future and what are the wishes and feelings of the child’s parents?
This list is not exhaustive and the Court will consider all relevant factors. The Court is also required to look at the likelihood of the application succeeding, as a way to weed out “frivolous” applications that would not result in a contact order being made. It can be seen that the application for permission is a significant application, for which a considerable amount of preparation will be required.
If a grandparent secures permission they can then make their application for contact under section 8 of the Children Act 1989. Anyone who has “parental responsibility” for the child, (normally the parents, or sometimes a local authority if one is involved) will be given notice of that application and have an opportunity to have their views heard during the proceedings. The Court will take into account the same factors as are taken into account when a parent makes an application for contact: the child’s own wishes and feelings, the child’s needs, the impact of any change in the child’s circumstances, the child’s age, sex, background and relevant characteristics, any harm (including emotional harm) the child has suffered or would be at risk of suffering, the capability of the applicant to meet the child’s needs and the range of powers that the Court has available. It can be a long process, but the Court can, if it considers it appropriate, make interim orders for contact (including indirect contact, such as the writing of letters or cards, or telephone calls), so that a relationship between a grandparent and grandchild can be preserved pending the Court’s final decision.
Ultimately the Court will decide the question of whether or not there should be contact by deciding whether it is in the child’s best interests. The recent case of CW v TW  EWHC 76 (Fam) emphasised that this is the key question for the Court. In that case, the grandparents’ application for contact was just one part of the litigation surrounding the children after a shattering family breakdown, following which the children were, as a result of the father’s conduct, having no contact with him. The Court was concerned about the impact on the children of the paternal grandparents’ (perhaps inevitable) hostile attitude toward the children’s mother. However, balanced against that was the Court’s view that the grandparents could have a very important role to play in creating normality for the children whilst their parents were locked in a bitter dispute. The Court ordered that there should be contact between the grandparents and the children, away from the grandparents’ home (so as to ensure that the father would not be present), following which the Court would reassess how to proceed.
What lessons can we take from this? The Court clearly recognises that grandparents can play a key role in their grandchildren’s lives, particularly where they can offer stability in a separated family, but that this can be compromised if the grandparents are unable to rise above the dispute between the parents. Hopefully, the Court’s recognition of the importance of grandparents playing a role in their grandchildren’s lives will be relayed to those parents who are hostile to contact between their children and their former partner’s parents, and encourage them to think very carefully before seeking to exclude them from their children’s lives.
Whether or not legal proceedings are appropriate or possible there are practical steps that every grandparent who fears that are being excluded from their grandchild’s life can take. Staying in touch by sending cards or letters or through other indirect forms of contact, such as email, is a useful way in which grandparents can continue to have some involvement in a child’s life. Furthermore, this type of indirect contact may help to build the foundation for a better relationship in the future and leave the door open for future direct contact. If it does not and legal proceedings become necessary, having tried to remain in touch in this way will help to demonstrate to the Court why it is in the child’s best interests for them to have a relationship with their grandparents.