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Grandparents and children
A fairly common query for our Family Department comes from the grandparents of children caught up in difficult situations. It may be that the children’s parents are splitting up and the grandparents are worried about losing contact with the children, or it might be even that the children are in danger of being taken into care and the grandparents would prefer to look after the children themselves, rather than see the children fostered or adopted.
The most common question from grandparents is whether they have any “grandparents’ rights”. Unfortunately the answer has to be “No”.
Legal Rights & Legal Aid: the Bad news
Being the grandparents of a child does not actually give the grandparents any automatic rights in connection with the child. They have no parental responsibility for the children, nor do they have an automatic right to be involved in any Court proceedings concerning the children. Neither are grandparents entitled to automatic CLS Funding (Legal Aid) within care proceedings, as parents are. Overall, grandparents really have very few rights at all.
The Better News
On the other hand, that is hardly the end of the story. It is well known that grandparents play an enormous role in caring for the children in this Country – according to the Grandparents Association (www.grandparents-association.org.uk) 82% of children are cared for by grandparents and I have certainly heard it said that if all the grandparents in the Country went on strike, as far as care of the grandchildren are concerned, the Country would rapidly grind to a halt. Indeed there is some pressure on government to introduce grandparent rights and a petition was recently posted on the 10 Downing Street website calling on the Prime Minister to change the law.
Courts know the reality of the grandparent role, as do Social Services and CAFCASS. Courts are always going to be wary of involving other family members in ongoing Court proceedings because it causes delay and extra expense but that does not rule it out: anyone is entitled to apply for the Court’s permission to join in as a party to ongoing proceedings and if there is a good reason why that should be done, then the Court should allow it. Whilst Legal Aid is not automatically available, if grandparents are financially eligible and their case has merit, then Legal Aid might still be granted.
Furthermore, being formally involved in court proceedings is not always necessary. Parents should be automatically involved and they can argue on behalf of a grandparents’ position as well. CAFCASS officers and Social Workers can speak to grandparents when preparing reports and recommendations for the Court, if the grandparents are relevant to the issues. If they refuse to consider grandparents without good reason, then of course that is a matter for the Court to consider.
As a general rule, Courts would rather children were cared for by capable grandparents than taken into care, as that is a better result all round. Grandparents can apply, subject to leave of the Court, for residence and contact Orders, and might even be suitable grantees of a Special Guardianship Order in appropriate circumstances. Indeed if children having been living with grandparents for 3 years, then leave of the Court may not be required. However, there may be any number of reasons why that might not be appropriate and it is always wise to keep calm and courteous, no matter how frustrating the situation may be – if you are not happy with the actions taken by the authorities, then that is clearly the time to take legal advice.
Conclusions
The situation is not at all hopeless but neither is it a case of automatic rights. Courts generally tend to consider that part of a parent’s contact time with children is to allow contact with the extended family as well i.e it is rare for specific contact orders to be made for grandparent time and the main focus will always be on time with the parent, rather than other members of the family. If grandparents have fallen out with their own son or daughter, who is the parent of the child, then things are very difficult and certainly advice is required at that time. However, it is by no means hopeless and the grandparents may still be able to see the grandchildren.
Children issues do not always have to end in a legal battle, and of course it is better for all, especially the children, if that can be avoided. Mediation, collaborative law, counselling, family therapy or even family group conferencing may be able to produce a solution that everyone can at least tolerate. At all times, the interests of the children must come first and what the adults may feel about each other is almost entirely irrelevant. However it is very hard indeed to put your own feelings aside in such a crucial matter.
As ever with difficult family situations, the best advice must be to get some proper legal advice at the earliest possible stage. All members of our family department have experience of dealing with these problems so if you are caught up in one of these difficult situations, please do call us and we will do whatever we can to help.
Tim Melville-Walker
Partner – Family Department
(Petersfield office)
Useful cases
Re A (Section 8 Order: Grandparent Application) [1995] 2 FLR 153
Re W (Contact: Application by Grandparent) [1997] 1 FLR 793
(FLR is a reference to the Family Law Reports http://www.justis.com/titles/family_law_reports.html , usually found in most university libraries)
Special Guardianship Orders
These are a relatively new innovation in the law, and so far they are very rare. They are likely to remain reserved for exceptional cases, and really should not be necessary for the vast majority of families – residence, specific issue and contact orders under section 8 of the Children Act 1989 (as amended) a likely to remain the primary orders in grandparent cases.
N.B. Family law and particularly Legal Aid are constantly changing – whilst this article is totally accurate at the time of writing, it cannot be relied upon: if something has changed it could cause real damage if you are unaware of it. There is no substitute for proper legal advice, so do call us if you are having any of the problems highlighted in this article.
Useful links
Please note that we cannot accept any responsibility if you choose to follow a link to any site other than our own. However please let us know of any broken links at Petersfield@macdonaldoates.co.uk
Grandparents Association www.grandparents-association.org.uk
Grandparents As Parents www.grandparentsasparents.org.uk
Community Legal Service (Legal Aid) www.clsdirect.org.uk
CAFCASS (Child and Family Court
Advisory and Support Service)
- formerly Court Welfare www.cafcass.gov.uk
Court Service www.hmcourts-service.gov.uk
Relate (advice, family counselling and
Therapy) www.relate.co.uk
Downing Street Petition http://petitions.pm.gov.uk/grandparents/
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