Many grandparents ask what rights they have in respect of their grandchildren in the event of their grandchildren’s parents divorcing or in circumstances where they may themselves become estranged from their grandchildren’s’ parents?
If, as a grandparent, you ended up in a situation where you are no longer seeing or spending time with your grandchildren what can you do?
There are routes for grandparents establish their position in relation to seeing their grandchildren.
If you are struggling to maintain a relationship with your grandchildren, it is very important that you get legal advice as soon as possible. The longer the matter is left without you having contact directly with your grandchildren, the more chance there is that the grandchildren will be set in a routine that does not involve you and this could lead to grandchildren reaching the conclusion that they do not wish to see you.
It is important that in the first instance you take steps to endeavour to see them by direct means, to see what might be on offer for you to see your grandchildren. In the first instance, you should contact the parents of your grandchildren.
In order to do this effectively you will need to put aside all conflicts and emotions and focus on what is in the best interests of the child. If you can approach the parents of your grandchildren with a sensible, practical, well thought out proposal which does, perhaps, reflect what was happening in the past then it is more likely that perhaps the arrangements for you to see your grandchild can be arranged and agreed amicably.
Even if you cannot have that conversation directly, it may be that a solicitor can contact the parent or parents of your grandchildren and try to negotiate an agreement on your behalf.
Mediation is both a potential way of resolving any dispute between you and the parent or parents of your grandchildren AND it is also a necessarily formality if you need to take legal steps to pursue that time with the grandchildren through the court process.
Mediation is a non-Court Dispute Resolution process which endeavours to encourage the people who are opponents in a dispute to meet together and have meaningful discussions with the assistance of a trained mediator. The mediator will facilitate discussions and will suggest potential solutions.
In order for mediation to be successful it does require a willingness of all parties to try to find a solution within the mediation process. You cannot force anyone else to use mediation it has to be voluntary.
If you are unable to resolve matters amicably you will need to consider whether your dispute needs the intervention of the court to resolve the dispute between your and the parents of your grandchildren as to then seeing and spending time with you.
Your Application to the court is to obtain a formal court order which requires that the parent or parents of your grandchildren must make the children available to see you on certain days at specified times. The order is known as “Time Spent With” Child Arrangements Order.
The availability of the court process to resolve disputes between adults regarding the arrangements for children is most generally a process which is used to resolve disputes between the parents of the child or children. As a general rule, (and there are exceptions) it is only people who have Parental Responsibility for children who can apply for a Child Arrangements Order as of right. It is as a result of this that the parents have the right to use the process automatically, BUT grandparents (unless the grandparents are in a different category of person with automatic rights to apply) cannot use the process without first obtaining the permission of the court to allow them to make the application.
This means that grandparents have to overcome this extra layer or first hurdle of obtaining the permission of the court before their application to spend time with your grandchild or grandchildren can be considered.
The Court’s decision on whether or not to grant permission to you as a grandparent will be made based upon the following considerations:
You should note that the parents of your grandchildren will have an opportunity to oppose your application for permission.
If as a grandparent you are given permission to make your application for the Court to consider making a Child Arrangements Order, then after such time as that permission is granted, the Court’s consideration of the disputes between you and the parents of your grandchildren will take place along similar lines as those cases of disputes between two parents.
When making such Orders, the Court will consider the welfare of the grandchildren to ascertain what is in their best interests including:
As in all cases involving children all the parties involved in the court process are encouraged to put the best interests of the children first. The court will always endeavour to put the best interests of the child first.
There may be a number of hearing at the court to enable the court to consider safeguarding issues (child protection matters) and to consider what input there may need to be from CAFCASS who are an organisation linked to the court and who advise the court on matters involving Children.
There are some circumstances where it may be that your grandchildren’s parents are unable to look after your grandchildren or it maybe that for some reason the grandchildren are in your care and are living with you.
Because, as grandparents, you will have no legal rights in relation to your grandchildren, it is important that you do obtain a formal Court Order if your grandchildren are to live with you. In particular, this is because a Court Order will give you Parental Responsibility for the grandchildren.
Parental Responsibility puts you in the best possible legal position in relation to your children giving you the ability to have a say in all aspects of their upbringing but also enabling you to require information from third parties and give any consent or permission (such as medical consent). It is often necessary for the adult with care of children to have Parental Responsibility for them.
It is possible to formalise the situation with the children living with you by obtaining a Child Arrangements order which orders that your Grandchildren “should live” with you.
The Child Arrangements Order made will provide you with Parental Responsibility for your Grandchildren. The Child Arrangements order for a child to live with someone also gives that person with whom a child or children are living Parental Responsibility for that children or those children for as long as that Child Arrangements lived with order is in place. In other words if the court orders that your grandchildren should live with you that order also includes you having Parental Responsibility for the children.
As with the Child Arrangements Order for the Children to spend time with you referred to above, you will need to obtain the court’s permission before you are entitled to apply for the order.
In cases where your grandchildren have Social Services involved or where their parents are unable to look after them, it is possible for grandparents to be appointed as Special Guardians for their grandchildren.
A Special Guardianship Order provides the grandparents with Parental Responsibility which can then be used without consulting the children’s parents who have Parental Responsibility. It is usual for a Special Guardianship Order to come about via the local authority involved with your grandchildren. In those circumstances, the local authority will undertake an assessment to evaluate whether or not the Order is appropriate.
The Special Guardianship Order is intended to provide children with a permanent placement until they reach the age of 18.
There is technically nothing in law to prevent a grandparent from adopting their grandchild. However, as the family relationship would tend become complicated by a child’s natural parents becoming their legal parents, it is often the case that Special Guardianship Orders are preferred over Adoption Orders where grandparents are involved.
If your grandchildren are taken into care then the local authority do usually promote contact between the children and wider birth families.
If your grandchildren’s parent or parents dies there is no automatic right to care for your grandchildren. However, it is possible for parent or parents of your grandchildren to appoint you as a guardian for their children in the event of their death. Such appointment does not automatically ensure that you will take over the legal rights for your grandchildren but it may be a good indicator of the wishes of the parent with whom the children were living at the time of their death.
Lovedays Solicitors, Potter and Co Solicitors and Andrew Macbeth Cash and Co Solicitors are the trading names of Derbyshire Legal Services Limited which is a company registered in England and Wales under company number 08838592. Registered office Crown Chambers, 6 Bank Road, Matlock, Derbyshire, DE4 3AQ.
Authorised and Regulated by the Solicitors Regulation Authority under SRA ID number 637916.