Emma Perkins – Partner and Solicitor and Head of our Children Law Team

Rights for grandparents to see their grandchildren

Family relationships can be complicated.

Adult children do not always get on with their parents. This means that sometimes grandparents who want to play a role in their grandchildren’s lives are prevented from having a meaningful relationship or a regular relationship by their own children.

If an adult child and their partner split up – then the (grand) children may live mainly with one of their parents. This can cause difficulties with grandchild/grandparent relations. The grandparents adult children may drift out of the grandchildren’s lives, or the parent with whom the children are living could be resistant to the parents of their former partner maintaining a relationship with the children of the relationship.

legal 500 leading firm logoSometimes grandparents can over involve themselves/take sides in disagreements between parents – such that they find their relationships with their grandchildren restricted or curtailed.

It is generally considered that children benefit from having good relationships with their extended family including all of their grandparents. Sometimes a child will not get on so well with their parents – but have a very important relationship with their grandparents.

On this page we will have a look at what happens if a grandparent finds himself in a position where they are taking legal advice and are thinking about going to court. All cases are different and we would strongly recommend that any grandparent seek legal advice if they are in a situation where they are thinking that they will have to go to court to be able to see their grandchildren regularly.

Fortunately we are experts in this type of law.

Here are some answers to some frequently asked questions:

FAQs – Grandparents and contact with grandchildren

If the relationship between the parents of your grandchildren breaks down it is to be hoped that arrangements could still be made for you to see you grandchildren regularly. grandparents often play an important role in the lives of their grandchildren. Grandparent/grandchild relationships are often very important to a child.

The best arrangements for children are usually ones that are flexible and where the adults are working with each other and getting on with each other reasonably well.

Good arrangements are ones which are regular and underpinned by good communication and trust between the relevant adults. Such arrangements normally can be flexible.

The best arrangements are not normally made through a court order but by the parents/grandparents talking to each other and reaching agreement.

Trust and communication are normally very important. If a grandparent falls out with the parent who is caring for their grandchildren life can be very difficult. Before the parent agrees to there being contact between their children and the grandparents – they will want to know that they can trust the grandparent to focus on the time being good quality and for the grandparent not to be saying things which are not nice about the parent.

We have seen cases where a grandparent will actively take sides in a disagreement between parents and will struggle not to make snide comments about one of the parents in front of their grandchildren. Needless to say – these grandparents have greater difficulty in maintaining regular contact than grandparents who are careful not to say anything about the parent which the parent wouldn’t like.

From a child’s perspective – the child wants to spend fun time with their grandparent. They will know that their Mum and Dad may not be getting on. It is not good for them to be hearing their grandparents saying horrible things about their Mum or Dad. Separation between parents will be a difficult time for the child – and they will want everyone around them to be saying nice things and to be getting on with each other as best as possible.

The starting point for any grandparent wanting to spend time with their grandchildren must be to focus on negotiations and on establishing/re-establishing/maintaining a good relationship with the parent with care.

If professional input is required – then the starting point would normally be to make use of mediation or collaborative family law. These are forms of dispute resolution based on constructive discussion.

The first formal step before a court application for a Child Arrangements Order (CAO) is to attend what is known as a Mediation Information and Assessment Meeting or MIAM.

The mediator will invite the parent (s) to their own Mediation Information and Assessment or MIAM meeting.

The idea is that parents and grandparents will individually discuss the pros and cons of mediation. We do regularly see situations where a parent might be obstructive when communicating directly to the grandparent or other parent and might say to them that they will not attend mediation. What we do see however is that if the mediator makes contact with the parent – they may be more open to mediation than the grandparent or other parent might think.

The reason is that the parent recognises that there is a problem and recognises that there is a need to sort something out – but the relations with the grandparent or other parent might be such that they are in the habit of saying no to everything that the other suggests. Everyone is stuck in the problem – but once they have met the mediator and have confidence in their neutrality and understand the mediation process – they may well be willing to agree to use mediation to try to find a mutually acceptable way forward.

If mediation does not take place – because for example the parent refuses to attend the MIAM meeting or if mediation is attempted and breaks down – then the mediator will sign a page on the court application form which is required to be signed by a mediator. The mediator signature is required by the court so that the application can be processed.

It is a requirement to attend a MIAM before making a court application for a child arrangements order unless an exemption applies.

The exemptions include if there is a genuine urgency. Sometimes mediation will not go ahead because there may be unresolved issues of domestic abuse.

If it can take place mediation is a very good process to find a way to resolve this type of difficulty in a mutually acceptable way. There is a lot more about mediation on the mediation pages of this website.

A Child Arrangements Order – CAO is a court order that regulates arrangements for a child that relate to any of the following:

  • with whom the child is to live, spend time or otherwise have contact
  • when the child is to live, spend time or otherwise have contact with any person

Contact simply means the time that a child spends with an adult. There are several ways that contact may take place:

  • direct contact between the child and the person named in the order
  • overnight staying contact
  • supervised contact, and
  • indirect contact through letters or cards

In rare circumstances, where the best interests of the child dictate, the court can order that there is no contact.

A Child Arrangements Order may also state the person with whom a child is to live, but not specifically where.

These are the current terminology for what would have been called custody and access. Child Arrangements Orders replaced Residence Orders and Contact Orders. The terminology is important. Custody and Access were abandoned as terminology because they are not child focused words. They are more akin to a child being imprisoned with a parent and being let out to see the other parent. Custody and access were replaced by residents and contact. These were more child focused: a child resides with…. A child has contact with….. However problem started to arise over the idea of joint residence residence and parents sometimes becoming fixated on having a label of having a joint residence order – when the idea when the children act was originally introduced was that if a child lived jointly between parents was that in that situation that shouldn’t need to be an order at all. A child arrangements order is even more focused upon the needs/arrangements for the child – so that the usual wording in an order is that a child will live with… Often more than one parent for periods of time… And the child will spend time with – most often other family members. Every case is of course different.

Generally, grandparents do not usually have an automatic entitlement to make an application for a CAO. This means that they must obtain permission from the court before they can apply.

This said, some grandparents will be entitled to apply for a child arrangements order if they meet the specific criteria contained in the Children Act 1989.

For example, the grandparent has the consent of every person with parental responsibility for the child.

We will discuss with you whether your circumstances meet the criteria to enable you to apply without the court’s permission. If your circumstances do not meet the criteria, then as a first step you must make an application to the court requesting permission to apply for a CAO.

Exeter crown and County Courts SignpostThe first step is that you will need to make an application to court for permission to apply for a CAO. (See above)

An application is made on a specific court form, which sets out the details of all the adults and children in the case. The form then requires you to say what orders you are asking the court to make and why.

When the court considers an application for permission it must take account of the following list of considerations:

  • the nature of the proposed application
  • your connection with the child
  • any risk there might be of that proposed application disrupting the child’s life to such an extent that they would be harmed by it, and
  • where the child is being looked after by a local authority what the authority’s plans for the child’s future are, and the wishes and feelings of the child’s parents

When the court receives the application for a child arrangements order by a grandparent seeking contact with their grandchildren, it will set a time and place for you and the other person or people involved to have a first court appointment (called a first hearing dispute resolution appointment (FHDRA)).

Information about this appointment and a copy of the application form must usually be sent to any other adults involved so that they have time to prepare a response. The person starting the court process is called the applicant and the parent, and any other adult with parental responsibility or looking after the child, is a respondent.

The respondent(s) must complete certain forms and send them to court to confirm they have seen the papers.

A copy of the application is also sent to Cafcass who will normally undertake some safeguarding checks.

Exeter crown courtsThe First Hearing Dispute Resolution Hearing is extremely important. The judge or magistrates will normally try to explore whether the case can be resolved by agreement.

There is normally time for negotiation before the hearing. If all parties are legally represented this will normally assist negotiations. Sometimes parents/grandparents can find the disagreement and the process of going to court quite emotional. The solicitors are often able to use their skills to narrow issues and/or find some agreements.

In many courts a Cafcass officer will also be available to assist discussions if this is likely to be helpful.

The FHDRA is when the court investigates the issues and enquires into the possibility of a settlement. If agreement cannot be reached the court will identify the outstanding issues and will direct how the case should proceed.

The court might order that a Cafcass (Children and Families Court Advisory and Support Service) officer prepares a report to help the judge at the final hearing, or it might order that the child be legally represented in the proceedings. Sometimes the court will adjourn the case for mediation to take place.

If the issues can’t be sorted out the court will hold a final hearing. Here, a judge will hear evidence from the adults involved, the Cafcass officer and any other necessary experts, and then make a binding decision.

The first concern of the court when considering an application for contact is the child’s welfare. The Children Act 1989 provides a list of considerations for the judge who has to decide the case, which help guide them in making a decision:

  • the wishes and feelings of the child concerned
  • the child’s physical, emotional and educational needs
  • the likely effect on the child if circumstances changed as a result of the court’s decision
  • the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
  • any harm the child has suffered or may be at risk of suffering
  • the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
  • the powers available to the court

Some of these considerations will be more relevant than others depending on the circumstances of the case.

The court must also be satisfied that making an order is better for the child than not making an order at all.

family photoAll cases are different. Therefore, getting legal advice at an early stage is important.

Going to court can be expensive and whilst costs orders are unusual in children cases they can still be made if a party has behaved in a way that is unusual. A costs order is probably more likely to be made against a grandparent who is considered to be applying unreasonably than a parent who is resisting contact. It is therefore very sensible to have a good idea about what the potential costs are before the application is made.

An important question may also be whether the grandparent’s children are having contact with their own children and or whether the adult child/parent is making their own application to the court for a Child Arrangements Order.

The court may well take the view that it is for the parent with whom the children do not live/adult child to organise contact between their children and their wider family within their own contact time. There may therefore be an issue between grandparent and their own child if this is not happening as between the grandparent and the parent with whom the children normally live.

All cases are different. All families are different.

Not being able to see well-loved grandchildren because their parents have fallen out is something which can be very upsetting both for grandparent and grandchild. These can be difficult cases and often a gentler approach can be more productive than the sledgehammer of a court application – although sometimes that is necessary. The best thing for any grandparent to do when they are in this situation is to seek legal advice.

We are happy to help and specialise in this area of law.