Rebecca Patience, a solicitor in Harrison Drury’s divorce and family law team, looks at grandparents’ rights.
This is a question we are asked by grandparents who are being refused the opportunity to spend time with their grandchildren. This may be an issue following a separation or divorce or due to a family dispute.
Currently, there is no automatic legal entitlement in England and Wales for grandparents to spend time with their grandchildren. However, if grandparents are being prevented from spending time with their grandchildren, they can seek permission from the court to make an application for a child arrangements order.
In considering whether to give permission to the grandparents, the court will not, at this stage, consider the merits of the application itself, instead the court will consider the criteria set out in section 10(9) of the Children Act 1989 apply, which states that the court ‘shall … have particular regard to:’
- the nature of the proposed application for the order
- the applicant’s connection with the child
- any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
- where the child is being looked after by a local authority:
- the authority’s plans for the child’s future; and
- the wishes and feelings of the child’s parents
If the grandparents are granted permission to make their application, then it is important to be aware that this does not mean that the application will be successful.
When considering whether to make an order for the grandchildren to spend time with their grandparents, the child’s welfare will be of paramount concern to the court.
The court will consider the following ‘welfare checklist’:
- The ascertainable 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, backgrounds and any other characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or maybe at risk of suffering
- Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- The powers available to the court in the given proceedings
There is also a presumption against making any order unless the court finds that it is best for the child for there to be an order.
If a child arrangements order is made, it will set out when and how often the children will spend time with their grandparents.
Like all matters relating to children, the court expects the parents and grandparents involved to have considered all options available to them to resolve the dispute without the need for court proceedings to be issued. If you are facing this situation it is important to seek specialist family law advice.
For additional information on contact with your grandchildren, or for advice on any family law matter, contact Rebecca on 01772 258321.