What rights do grandparents have to see their grandchildren?
Despite popular belief, grandparents have no formal automatic right to see their grandchildren. Only people with parental responsibility (such as mothers, fathers who are married to the mother or name is recorded on the children's birth certificate or legal guardians) have the automatic right to make an application to the court for an order setting out the contact they are to have with the children. However, the courts do recognise that grandparents can have an important and valuable role in the upbringing of the child and so it is possible for grandparents to apply to the court for an order setting out the contact they are to have with their grandchildren.
Applications to the court should only be made as a last resort and it is better for the parties to try and agree arrangements between them without going to court. If this cannot be done informally by the parties alone then mediation may be an option. Mediation is where the parents and the grandparents all meet with an independent mediator who helps them to reach a solution. If mediation does not work then there could be arm’s length negotiations between solicitors where the grandparents instruct a solicitor to write to the parents or their solicitor to try and reach an agreement. Prior to making an application to the court there is an obligation on the grandparents to try and resolve matters through mediation or, at the very least, be assessed by a mediator who determines that the matter is not suitable for mediation.
Before grandparents can apply to the court for an order setting out when they can see their grandchildren, they must first seek permission to apply for a court order. When deciding whether to allow the grandparents to make an application, the court will consider the following:
- Their connection with the children.
- The nature of the application for contact.
- Whether the application might be potentially harmful to the children’s well-being in any way.
The rationale behind grandparents being required to apply to court for permission is ensure that vexatious applications or applications that do not have a reasonable prospect of success are not allowed to proceed.
When considering the making and content of any order in respect of children, their welfare will be the court's paramount consideration. The court will refer to what is known as the welfare checklist. The seven criteria included in the checklist under s 1(3) Children’s Act 1989 are:
- The wishes and feelings of the child concerned: how much this is taken into account depends on the age of the child e.g. children over the age of 12’s wishes are given more weight.
- 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, backgrounds and any other characteristics which will be relevant to the court’s decision: if the child is young the court may not consider it appropriate for the child to be away from the parents for a long period of time.
- Any harm the child has suffered or may be at risk of suffering: if the child has been put in danger when in the care of the grandparent previously then the court may consider that the grandparent is only able to have contact with the grandchild if it is supervised by a third party e.g. another family member.
- How capable the grandparents are of meeting the child’s needs.
- The powers available to the court in the given proceedings.
If the grandparents are granted a court order, this can set out arrangements for direct forms of communication such as face-to-face visits or overnight stays with the grandchildren and/or in-direct forms of communication such as letters, Skype/Facetime, text, email, telephone calls etc.
If you are a grandparent that is experiencing issues with seeing your grandchildren and you want to find out what your options are, then please contact Simon Thomas on 01480 442078 or send an email to firstname.lastname@example.org. Our team of family solicitors are highly experienced in all aspects of family law. We are also able to offer a full range of dispute resolution options including mediation and collaborative family law details of which can be found on our website: www.leedsday.co.uk/services-for-individuals/family/