Lack of Rights for Grandparents
12th June, 2019
It may come as a surprising fact to some that if you are a grandparent, you do not have an automatic right to enjoy time with your grandchildren under the current law in England and Wales.
Family relationships can often be complicated and some grandparents may have been denied spending time with their grandchildren. This could be because their relationship with the child’s parents may have broken down or, more commonly, as a result of the separation of the child’s parents.
If grandparents have been restricted from seeing their grandchildren and they wish to re-establish or ensure they can maintain the time they spend with them, or even for the child to live with them, they must apply to the Court for a Child Arrangements Order under the Children Act 1989.
Generally, only people with parental responsibility for the child, i.e. parents, step-parents and guardians can automatically apply for a Child Arrangements Order, so unless the grandparents have the consent of all those with parental responsibility, they must obtain the Court’s permission. One limited circumstance where the grandparents may not need permission is if the child has been living with them for one year immediately before an application is made.
When the Court is deciding whether permission should be granted to the grandparent, they will consider the nature of the agreement as well as whether their connection is meaningful and important to the child in question. If there is already a close relationship established between grandparent and grandchild, it is more likely that a Court would grant permission. However, there is no presumption that just because there is a biological relationship, that permission is granted in favour of the grandparents. The Court will also contemplate whether the child’s life may be disrupted by the grandparents’ application for a Child Arrangements Order. The Court takes into account the impact an application would have on the child’s physical and mental health as well as their social, emotional and behavioural development.
If the grandparents are given permission, they can then submit their application for a Child Arrangements Order, applying either to spend time with the grandchild or for the grandchild to live with them. Although the Court may have granted them permission to apply for a Child Arrangements Order, there is no presumption or guarantee that such an Order would be granted. It is therefore essential that grandparents receive suitable legal advice in applying for the Court’s permission and for a Child Arrangements Order. The Court needs to be persuaded whether it is in the best interests of the child to spend time with or live with their grandparent, as the child’s welfare is of paramount consideration.
Each case is unique and if you require advice on arrangements for your grandchildren, please do not hesitate to contact Katie Hughes-Beddows