What access rights do grandparents have to see their grandchildren in the event of a divorce?

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Grandparents’ Rights
There can be many reasons why family relationships do not run smoothly. As grandparents, exactly what rights do you have if you have been denied access to your grandchildren? Here our Family and Matrimonial specialist, Caroline Gregg, answers your key questions.

What legal rights do grandparents have to see their grandchildren?
Sadly, grandparents do not have an automatic right to contact with their grandchildren. However, family courts will recognise the invaluable role which grandparents play in their grandchildren’s lives and it is very rare that a court would refuse access unless there is evidence of serious welfare concerns for the children, for example, abuse or violence.

Can I apply to the courts to see my grandchildren?
Yes. Usually only people with Parental Responsibility, for example parents, step-parents or guardians can make an application for a Child Arrangements ‘spend time with’ Order. Although grandparents’ rights are limited they can obtain permission (leave) to apply to the Family Court for an order.

Caroline says: “Grandparents do have to apply to the court for permission to apply for contact and this formality is dealt with on their court application form. In cases where a child has been residing with the grandparents for five years or more, then generally they will not have to apply for permission.”

If you apply, the following factors will be taken into consideration:

· The Applicants connection with the child
· The nature of the application i.e. frequency of time they wish to spend with their grandchildren
· Whether the application might be potentially harmful to the child’s wellbeing, to which, safeguarding checks shall be carried out by CAFCASS prior to the first hearing

The court will always consider the child’s circumstances and must only make an order when it is deemed necessary than making no order at all. In other words, they may have to assess whether your continuing contact with the child might have a negative effect on surrounding family relationships.

Will I need to attend at court during the course of these proceedings?
Yes. If arrangements can be agreed, by consent, then it may only be necessary to attend one hearing to deal with the formality of permission being granted to your application and obtaining a final order detailing the time you will spend with your grandchildren. If, however, parents raise objections then it is likely the proceedings shall continue and further hearings will be necessary. In such cases you will be required to attend all future hearings where both parties can put forward their position/proposals for contact sought in support of evidence being heard by the court if arrangements cannot be agreed. At this point in the process it is vital that you receive expert legal advice, so the court can be persuaded that you have a meaningful and ongoing relationship with your grandchildren and the benefits this brings to their lives.

How do the courts make a decision?
In private law cases, governed by the statutory legislation under the Children Act 1989 applications are decided through CAFCASS (the Children and Family Court Advisory and Support Service) and this includes grandparents’ disputes.
CAFCASS will ultimately support the court with their professional recommendations as to future arrangements that will work best for the children and in some cases this may involve detailed work being carried out by CAFCASS in the preparation of a written report. Even if the recommendations by CAFCASS are not accepted by the parents, for example, if they are more favourable to the grandparents position then the recommendation of CAFCASS will hold great weight before the court and quite often dictate the outcome of the courts final decision.

Lisa says: “I have had a recent case where I was representing the interests of maternal grandparents. The child had lived in their care for circa six years so permission was not required in their application before the court. Mother had applied to the court ultimately for transfer of residence/shared care and to spend more time with the child than those present arrangements. Due to the background, welfare concerns raised during the course of proceedings, and the age of child/length of time living with maternal grandparents, these factors held great weight before the court, and due to the child’s strong wishes and feelings having been taken into account the report prepared by CAFCASS recommended that the child remains living with grandparents.”

How much access to my grandchildren will I be granted?
Advising upon the frequency of time for grandparents is difficult as they are not assured anywhere close to the level of contact which parents are understandably entitled. The final decision will also depend on the age of the child.  If the child/children are 10 years of age and above their wishes and feelings will likely be taken into account when deciding on the issue of contact and future routine.

Can I get custody of my grandchildren?
If the child has been living with you for a number of years the case for them to remain is easier than if the grandparents seek a transfer of residence.

Caroline explains: “The only time courts are persuaded to rule in favour of the grandparents is when the child has lived with them for some time, or if both biological parents are out of the picture due to safeguarding concerns such as longstanding drug or alcohol abuse. Otherwise establishing a transfer of residence is extremely difficult and you would be expected to provide evidence of the amount of time the child usually enjoys in the grandparents care, in support of the child’s clear wishes. Many choose not to pursue this course of action as they know that the outcome may not be worth the emotional and financial toll.”

Is it worth considering mediation?
Yes. In many cases there is the possibility of making a referral to mediation to achieve an outcome which is agreeable to both parties, rather than leaving it to the court to decide which, as with any litigation, carries a degree of risk and financial pressures.

If you need further expert legal advice on any aspect of grandparents rights please do not hesitate to call Caroline Gregg today on 01538 370830 or 07814 175350. Alternatively you can email Caroline at cg@bowcockpursaill.co.uk