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Rising number of grandparents going to court for access to grandchildren

By Sara Lange -

Rising number of grandparents going to court for access to grandchildren

A growing number of grandparents in Britain are turning to the courts to help after they are denied access to their grandchildren.

Grandparents can play a vital role in family life - they can be an important part of the family unit, a source of love and support for their children and their grandchildren. In many families, especially those with two working parents, they are regularly relied upon for childcare and thus develop strong, caring bonds with their grandchildren. Some estimates show that as much as 60% of all childcare in the UK is provided by the grandparents. Maeve Thompson, of the charity Grandparents Plus, points out that research has shown that the increasingly important roles that grandparents are playing in their grandchildren's lives is "having a positive impact, particularly on adolescents and when families are going through difficult times."

Sadly, it's when families are going through difficult times that grandparent contact is most often cut off. This can be due to the breakdown of the parent's relationship or the death of one parent. It is estimated that one million grandparents in the UK are being denied relationships with their grandchildren, while research suggests that, after a break-up, close to half of grandparents never see their grandchildren again. The paternal grandparents are most likely to be affected, as fathers are still generally less likely to be awarded custody and their wider family may find it harder to stay very involved in the child's life.

Now, an increasing number of grandparents in that situation are turning to the courts to help. In 2014, 1,617 applications for child arrangements orders were made, which rose to almost 2,000 by 2016. An average of seven applications a day were made by grandparents last year for a court order that would grant them time with a grandchild after the breakdown of a relationship between the child's parents. The Children Act 1989 gave some contact powers to step-parents, but grandparents still have no automatic legal access to their grandchild's life, so how does this litigation proceed?

It's true that only people with parental rights have automatic legal access to the child but there are other legal routes for grandparents to pursue in order to spend time with their grandchild, even when the child's parent(s) opposes it. The legal route, however, may not always be the easiest or even most effective route and even lawyers recommend that grandparents exhaust all other options before turning to the legal system. Legal proceedings are often long, expensive and put great stress on all parties involved. Grandparents are encouraged to first negotiate contact directly with the parent(s) who can facilitate it. If the situation is one that allows it, the grandparent can create an informal agreement or share contact time with another relative or a non-resident parent. A trained family therapist can be a help if these negotiations are difficult or emotional. If this doesn't work, the next recommended step is for a grandparent to attend a Mediation Information and Assessment Meeting (MIAM) in order to explore the possibility of mediation. Not only is legal aid available for mediation, but conflicts can often be solved this way faster and more amicably. In any case, an applicant grandparent will need to show that they attended a MIAM in order to apply for a child arrangements order, unless they are exempt for some reason.

There are other hurdles to application, too. Grandparents have to seek permission to apply for a child arrangements order, unless the child has lived with them for at least three years or they have the consent of someone who has parental responsibility for the child. The court will apply Section 10 of the Children Act when considering this application, taking into account the nature of the application, the applicant's relationship with the child and the risk that the application will disrupt the child's life to such an extent that the child would be harmed. If permission is granted, the grandparent will need to show that they had an "important, meaningful" relationship with the child before the contact stopped, and that it is in the child's best interests that the contact continues. The child's best interests are in fact paramount in the decision making process of the court. This means that although statements can be put forward from the grandparent(s), the parent(s) and even the child if the child is over 10 years old, the court is considering only the welfare of the child at all times.

Some family lawyers believe that even the rising number of applications made directly by grandparents doesn't convey the reality of the situation. Grandparents may be considering the welfare of the child themselves by choosing not to take the matter as far as litigation and thus risk fuelling family conflicts. On the other hand, they may push the mother or father, their child, to seek a child arrangements order instead, as these are much more likely to be successful. No coincidence that family lawyers note that grandparent involvement in such orders is also on the rise!

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Sara Lange

Sara joined Vardags in March 2017 after working for a top Los Angeles family law firm. She previously volunteered at Paiwand (Afghan Association) supporting ref…