Recent headlines suggest that a proposed amendment to the Children Act would have the effect of bestowing grandparents with the right to have contact with their grandchildren following a family breakdown before too long. Family Law Partner Nigel Winter considers the current situation and what grandparents can do now to maintain contact.
Given the demands of modern life, many grandparents comment that they have never been so popular. When you consider that 4.9 million mothers with dependent children are in work and one in three families have both parents in full time jobs together with the rising cost of childcare, it’s hardly surprising that grandparents are called on to lend their support.
Indeed it appears that the decline in multi-generational families holidaying together may have been reversed in some instances, with the new concept of ‘Grandping’ emerging; childcare on hand is clearly an undeniable advantage.
But what happens if relationships breakdown and there is a dispute between parents and grandparents, divorce, or even one parent pre-deceasing the other?
As the law currently stands, applications for continued access can be made to the Court under the Children Act, with the focus squarely on the children and their ‘best interests’. In fact grandparents have to jump through two hoops in that they have to seek the Court’s permission to even make an application for contact in the first place. This is to ensure that the Courts ‘screen’ those applications that are clearly not in the children’s best interests. Even so, in 2016 some 2,000 grandparents were successful in persuading the Court that their application met that criteria.
The proposed change now is that there should be a presumption that grandparents should be involved as much as possible in the lives of their grandchildren. The ‘right’ being discussed actually refers to the child’s right to have a relationships with close family members which would also include aunts and uncles.
The debate has rightly generated a great deal of interest in the media, but this amounts to just a ‘small step’ for grandparents.
Should grandparents with issues of access wait until the law is changed? That that can only really be answered by whether the delay (by which time the children might have possibly reached the age of 18 in any event given the demands on Parliament’s time), is in their best interests. Usually it is not. Any application relating to the children will be determined on the basis of those best interests as should the decision by any grandparents contemplating an application.
Currently one can seek the Court’s permission at the same time as making the application to see the children simply by ticking a box on the relevant form, with no additional fee to pay.
In practice and under the current law, the Family Courts do recognise the importance of children spending time with their grandparents. Furthermore these case do not have to end up in Court. Indeed it is compulsory that an applicant tries to reach an agreement through Mediation or other out of Court negotiation before applying to the Court.
It is hard to imagine the heartache a grandparent might feel when denied access to their grandchildren, or how upset the grandchildren might be. In the absence of a genuine reason for why such access is contrary to the children’s best interests, every effort should be made to reach an out of Court settlement. This does occur frequently in cases where it is clear to the parties that the Court would make an order in favour of the grandparents, if a Judge had to make a decision.
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