Rachel Weldrake, Family Law Solicitor, Tayntons LLP, Gloucester on the reported absence of Grandparent's Rights'

4th April 2011 09:44

Recent media reports are suggesting that ‘currently grandparents have no contact rights in law’. Our Rachel Weldrake disagrees and suggests it is not quite as simple as that.

This issue arises following the recent release of the interim report of the Family Justice Review  prepared by David Norgrove, a former civil servant. The review panel spent a year speaking to children, parents and those who work in family justice. The interim report is 232 pages long and can be read in full at http://www.justice.gov.uk/publications/docs/family-justice-review-interim-report.pdf

Agreements allowing grandparents access to their grandchildren after parents split up are being proposed in a review of the law in England and Wales. As well as there being a ‘statement in law’ about the importance of both parents having a relationship with their children the Family Justice Review will suggest that any agreement should also ‘reinforce the importance of a child’s relationship with grandparents”.

However, the recommendations in the report stop short of giving grandparents any legal right to contact with their grandchildren. So where will this leave a grandparent who is being denied contact with a grandchild? It leaves them in the same position as they are now.

Grandparents do not fall into the category of persons who are automatically  ‘entitled’ to apply for a contact order. However, it is open to a grandparent to apply to the court for leave, i.e. permission, to apply for a contact order under the Children Act 1989.

In considering such an application the court must take account of (a) the nature of the proposed application, (b) the applicant’s connection with the child, (c) any risk there might be of that proposed application disrupting the child’s life to such an extent that the child would be harmed by it and (d) where the child is being looked after by a local authority – the authority’s plans for the child’s future and the wishes and feelings of the child’s parents.

If a grandparent is successful and obtains permission to make an application then the proceedings will continue in the usual way under the Children Act 1989.

In all cases where a court is asked to make a decision about a child, the child's welfare is of paramount importance. The court will have regard to what is called the ‘welfare checklist’, which includes amongst other things the consideration of (a) the ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding), (b) the child’s physical, emotional and educational needs, (c) the likely effect on the child of any change in circumstances and (d) any harm which the child has suffered or is at risk of suffering.

From experience Rachel Weldrake suggests that the most common problem grandparents face in such applications is finding the time for the child to see them independently of the parents. Take, for example, a child whose parents have separated and who is in full time education. During the week the child attends school and then after school club, swimming, drama, etc in the evenings as well as finding time to do their homework. At the weekends, the child has football training on a Saturday morning and a football match to play on a Sunday morning. The child would also like to spend some time with his mates. When does this child have time to spend ‘quality’ time with each of his parents separately let alone widening the net to include grandparents?

 For advice on all family matters including financial relief contact Rachel Weldrake, Solicitor, a member of Resolution and the Law Society’s accredited Family Law Panel on 01452 509878 or rachel.weldrake@tayntons.co.uk