Jane Sisson-Pell, Family Law Barrister
If your grown up children are divorcing or separating from their partner, it can be heartbreaking to watch the fallout.
Jane explains grandparents’ rights
Worse still, precious contact with your grandchildren may reduce or stop perhaps due to hostility between the separating couple.
If this is happening to you, court proceedings should be the last resort because they can be lengthy, stressful and expensive. Court proceedings can increase the conflict and the hostility between the parent(s) and grandparents. If you are grandparents who are considering issuing court proceedings, do consider exploring all options first, such as talking to both parents or writing a carefully worded email to them or inviting them to family mediation.
The best way forward
Even if you choose to go to court, before court proceedings can be issued, attendance at a Mediation Information and Assessment Meeting (MIAM) is required unless a specific exemption applies in the particular case. Part 3 of the Family Procedure Rules 2010 and Practice Direction 3A provide that ‘The adversarial court process is not always best suited to the resolution of family disputes. Such disputes are often best resolved through discussion and agreement, where that can be managed safely and appropriately.’
If family mediation takes place, the mediator’s role is one of facilitation. The mediator is neutral. Their role is to assist the parties to identify a solution, without the need for court proceedings.
Most grandparents need to obtain the court’s permission to make an application to the family court to spend time with their grandchildren. This is because they do not have parental responsibility for their grandchildren, therefore, they do not have an automatic right to apply to the family court for contact.
However, a grandparent may be automatically entitled to apply for a child arrangement order under section 10(5) of the Children Act 1989 if they are: a relative of a child, if the child has lived with the relative for a period of at least one year immediately preceding the application, or any person with whom the child has lived for a period of at least three years; section 10(10) of the Children Act 1989 states this period ‘need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application, or any person who has the consent of each of the persons named in a child arrangement order in force relating to with whom the child is to live or when the child is to live with any person; or who has the consent of each person in who favour the order was made in any case where there is an existing order for care in force, or who has the consent of a local authority in any case where the child is in the care of that local authority; or who has parental responsibility for the child by virtue of provision made under section 12(2A); or in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
The top priority for the judge will be the child’s welfare
At every court hearing, the top priority for the judge will be the child’s welfare. In some cases, if the child is old enough, the child can be invited to speak to the judge privately and the judge will listen to the child’s views about their relationship with their grandparents. The parent(s) may resist the grandparents’ application and therefore success is by no means guaranteed.
MPs are alive to the issue of grandparents maintaining contact with their grandchildren. There was a debate about this pressing issue in the House of Commons at the beginning of May 2018. Watch this space!
Grandparents Plus is a registered national charity which has been established to support grandparents who have lost contact or are looking after their grandchildren on a full-time basis. Grandparents can access the following helpline to obtain support and advice on 0300 123 7015 or at email@example.com.
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You will be fully supported and in control of your case at every stage.
Jane is authorised to practise by the Bar Council and is regulated by the Bar Standards Board. She has a right of audience in every court in England and Wales. Jane can be contacted via the Bar Council Public Access Register.
For legal advice on grandparents’ rights, get in touch for a quick quote:
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