Grandparents play an increasingly important role in the family life of today. Alongside that, they spend more time than ever before with their grandchildren. But if a family break-up occurs, what happens to you as grandparent? In this article we look at the options available and whether you have any legal rights to see your grandchildren.
When a relationship breaks down, whether the couple are married or not, the impact of the breakdown not only affects the couple itself but can often extend to other members of the family. This is particularly the case where children are involved. A parent may, for instance, prevent their partner’s parents from seeing and spending time with the children. This may be out of spite. A parent may even stop their own parents from seeing and spending time with the children.
So what can be done in such a situation?
The first and best way forward is to try and resolve matters directly as a family. This is usually the most constructive, least contentious and most cost-effective form of resolution. If this simply isn’t suitable or successful, the next step is to attend mediation. Mediation is a process whereby the issues that arise when a couple separate are addressed. The mediator is there to make sure that the discussion is constructive and that the grandparents and parent each have their say. It is a flexible process. Attending mediation is essential prior to going to court, although in a limited number of situations, mediation can be exempt.
If these processes do not result in the desired outcome, then the next option is to instruct a solicitor to advise on how the grandparents can ensure that they are able to continue seeing their grandchildren.
As far as the legal position is concerned, the only people who are able to automatically apply to the court for an order, to determine where a child should live and who can spend time with him/her, are those with parental responsibility. Parental responsibility is the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property. A person who has parental responsibility for a child has the right to make decisions about their care and upbringing. A mother automatically acquires this when she has a child. A father acquires parental responsibility if his name is on the child’s birth certificate, providing the child is born after 1 December 2003 or if he is married to the mother (regardless of whether the marriage took place before or after the birth of the child). The final two ways for a father to obtain parental responsibility is either by a formal agreement or by way of a court order.
Having seen the rules that apply to fathers when acquiring parental responsibility, it is evident that grandparents cannot simply assume that they have an automatic right to spend time with their grandchildren. Despite this, they can still make an application to the court. However, this process is, in essence, two-fold. First, grandparents must apply to the court for “leave”, or permission, to pursue this. Each case is considered on its own merits. On the basis that the Judge does give leave, grandparents must then apply to the court for an order to see/spend time with their grandchildren.
When determining such an issue, the factors that a court will take into account are set out in legislation, under the Children Act 1989, in what is known as the Welfare Checklist. These are as follows:
- The 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 courts decision.
- The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision.
- Any harm the child has suffered or may be 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.
The Children Act also states that the child’s best interest is paramount. If it is in the child’s best interest to see their grandparents, then this should be allowed.
Grandparents should therefore not be discouraged from pursuing a positive relationship with their grandchildren simply because the parents have separated.
After all, the stability, love and affection that grandparents can provide may be exactly what is needed, in what can be an upsetting and challenging time for the child.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.