Access to your grandchildren may seem as something natural that you should be entitled to. This, however, is not always the case.
The negative impact of divorce on children is well established, but what is often less acknowledged is the effect on grandparents. Grandparents may be left feeling powerless during the divorce process as the focus is placed on parental arrangements, but the need to preserve the grand parent-child relationship may be ignored.
The reality is that while parents may be divorcing, the bond of children with their grandparents can play a significant role in helping them through such a traumatic period in their lives. As one part of their life is broken apart, maintaining the solid and anchored relationship with Grandparents may make the difference between adapting well or struggling to cope.
But what happens if grandparents become unwitting victims of the divorce process? Perhaps the parent with primary custody denies access, or they decide to move away from the local area or region, thus preventing access by proxy? Due to the highly charged emotions surrounding divorce, it is not unusual for one parent to deny child access to the parents of their ex-spouse. In such circumstances, it is essential to understand your legal position.
What rights do grandparents for access to grandchildren?
Unfortunately, there is no automatic right conferred on grandparents to have access to their grandchildren; this is reserved for those with immediate parental responsibility. There are, however, two legal routes which grandparents may consider to gain access to their grandchildren:
Alternative dispute resolution (ADR)
ADR offers a highly effective way of resolving disputes outside of the Courts. Grandparents seeking access to their grandchildren following divorce often engage the services of a Solicitor affiliated with Resolution, a collective of over 6,500 family law professionals who follow a Code of Practice designed to resolve matters in a manner which is non-confrontational and preserves the relationship of all parties involved. Resolution Solicitors offer a range of non-Court options, including:
- Arbitration – an independent arbitrator makes a final and binding decision on behalf of the parties.
- The collaborative law process – a carefully designed process whereby each party and their respective Solicitor will work together to find a resolution through a series of meetings
- Mediation – a specially trained and independent mediator will endeavour to help them find a solution to the dispute
- Lawyer negotiation – Solicitors for each party work together to find a resolution to the dispute
The benefits of ADR in finding a solution can be considerable. Not only can costs be kept to a minimum, but by keeping the matter outside of the Court system, and discussing the matter in a respectful, kind, and flexible manner, relationships between parents and grandparents can be maintained and even bolstered.
Seeking a Child Arrangement Order (CAO)
If ADR methods are not suitable or prove unsuccessful, a CAO may be considered. Under section 8 of the Children Act 1989 (CA 1989), CAO’s, which have superseded ‘residence orders’ and ‘contact orders’, are not just used to agree with whom a child will reside (and when), but also define who they can spend time and have contact with. The CA 1989 requires that grandparents and other extended family members request permission from the Court before making an application for a CAO. This is unless the child has been living with the grandparent/s for a minimum of one year, in which case permission to apply is not required.
If permission to apply for a CAO is sought, the Court will weigh up a number of factors including the reason for the application, the relationship between the applicant and child, and any potentially negative implications to the child if the application is allowed. Further evidence may be requested by the Court, and depending on the facts of the case, attendance at a hearing may be requested.
Once permission to apply for a substantive order under section 8 of the CA 1989 is granted, the applicant/s will be requested to attend a Mediation Information and Assessment Meeting (MIAM) – whereby an assessment of whether mediation may lead to a resolution will be made.
Given the sensitive nature of such matters, should the matter proceed to Court, Judges and Magistrates have broad discretion on how they conduct hearings, including whether the submitted evidence is relied on. Success at the permission stage cannot be assumed to lead to the same result when it comes to the substantive order application.
The overriding concern of the Court in reaching a decision will be the wellbeing and welfare of the child, and to this end, they may request a section 7 report from the Children and Family Court Advisory and Support Service (Cafcass). Cafcass is an independent public body responsible for protecting the interests of children during legal cases. The report will be prepared by a Cafcass officer, having interviewed the parties involved, including the child themselves if it is appropriate to do so.
Based on the evidence provided, the facts of the case, and the Cafcass report, the Court will then make its determination whether a CAO should be awarded in favour of allowing ongoing contact between the child and grandparents.
Other options available to grandparents
The two routes outlined above may not be suitable in cases whereby neither parent is able to look after their children following divorce. The CA 1989 then provides for the application of a Special Guardianship Order by an individual who is a guardian of the child, has a CAO or residence order, has parental responsibility, with whom the child has lived for three years in the last five years, or with the permission of the Court to apply (this list is not exhaustive). By applying for a Special Guardianship Order, grandparents may be granted parental responsibility of their grandchild in lieu of the child’s parents who are not able to provide the care required.
The positive role of grandparents in the lives of children cannot be overstated, and having this vital relationship torn apart due to no fault of either, can be heart-breaking. If you are a grandparent of a child for whom you are being denied access following divorce, while you do not have automatic legal rights to contact, there are several options available, both inside and outside of the Court system. A specialist family law Solicitor will take the time to listen to the details of your case, and advise on the best course of action to take. In doing so, they will place the needs of the child at the centre of the advice they provide and move you closer to re-establishing contact with your loved one/s.
If you require advice on any of the issues mentioned in this article, please call us on 020 3372 5125 to make an appointment.