What are grandparents’ legal rights when families split up?
THE BEST OPTION IS TO SEEK SPECIALIST ADVICE IF ACCESS TO GRANDCHILDREN IS DENIED
THE effect of a couple separating can be stressful for children and their extended families. Grandparents could find themselves excluded from contact with their grandchildren.
In 2020, the Office for National Statistics revealed there were 107,599 divorces of opposite-sex couples in 2019, increasing by 18.4 per cent from 90,871 in 2018, reflecting the backlog which has been growing in the court system. For grandparents who are worried about access to their grandchildren during and after a divorce, I outline your rights below.
Do I have a legal right to see my grandchild if my child divorces?
The short answer is no. You don’t have an automatic legal right to see your grandchild if a parent caring for the child stops contact. In most cases you would continue to see your grandchildren when they are in the care of your own son or daughter, but there are circumstances when this is not possible.
There are steps you can take to help you see your grandchild, such as through an informal, family-based arrangement with the parents or through mediation.
Typically, the mediator will arrange a Mediation Information and Assessment Meeting (MIAM), which helps families reach agreements after divorce or separation, including matters involving children. An independent and impartial mediator will work with you and family members to come to an agreement.
If this isn’t successful, then you can seek the court’s assistance by applying for a Child Arrangement Order – which regulates who the child will live with, spend time or otherwise have contact with – but you must first get permission from the court to make this application.
Before granting permission to file a Child Arrangement Order application, the court will have to consider the grandparent’s connection with the child, why they’re applying for contact and whether the application would cause harm to the child’s life.
To answer these questions, you must file a supporting statement containing your reasons for the application, your position on contact with your grandchild and how your continued involvement will have benefits to them.
If permission is granted, then a Children and Family Court Advisory and Support Service (CAFCASS) officer may be appointed to prepare a report. If the parents don’t agree with the report, a full hearing may follow. The court makes its decision by referring to the Welfare Checklist to ensure that any order made is in the child’s best interests. Should the court rule in favour of you as the grandparents, it will then assess whether your involvement will negatively impact other family relationships. Only then a Child Arrangements order for contact is made. The type of contact can be one of the three:
■Direct contact – where they can meet you or stay with you,
■I■direct contact – via email, phone calls, letters
■Supervised contact – if there are child safety concerns
What happens if the court order is ignored by the parents?
This can sometimes happen in these types of cases. If it happens, you can bring your case back to the family court. The court will decide whether the order has been breached and, if so, whether the parents had a reasonable excuse for doing so.
If there is no reasonable excuse for the breach, the court can then enforce the order and punish the individuals who have disregarded the order.
It is important to note if you are worried that you could be denied access to your grandchild after your child divorces, it is best to seek legal advice early, as a family law solicitor will be able to help you reach an agreement, without having to go to court.
It can also save time and costs and can mean you can avoid going to family court to get the dispute settled. Applying to court should always be a last resort.
One thing is clear – it is best to seek specialist advice from a family solicitor if you are concerned you will be denied access to your grandchild.
■ Lubna Shuja is the vice-president of the Law Society of England and Wales. She will become the first Asian president in October 2022 and the seventh female president when she takes office.
1. The Law Society: https://www.lawsociety.org.uk/public/for-public-visitors/
2. Find a Solicitor – The Law Society: https://solicitors.lawsociety.org.uk/