Earlier this week, we reported on the case of C (A Child). A grandmother won the right to appeal against a ruling that her grandson be adopted. She had applied for a special guardianship order, an arrangement that would allow her to look after the youngster, providing the stability he needed, without completely torpedoing his relationship to his birth parents.
The Court of Appeal said the original judge had not given sufficient thought to the necessity of adoption and the support which would be available to the mother as if she became the boy’s special guardian.
The judge noted the importance of courts only opting for a drastic measure like adoption, permanently removing a child from his or her birth family, when is it really necessary to do so.
It will be interesting to read the eventual outcome of her appeal. But in the meantime, the case highlights the important role grandparents can play in the lives of young children, a role which is perhaps more frequently overlooked now that it once was. Not so long ago, it was routine for parents to turn to their own mothers and fathers living nearby for advice and help with childcare, but nowadays we live in a much more atomised society. Many families are scattered around the country or even the world and the almost invariable result is that grandparents are reduced to the role of occasional visitors rather than the important members of a seamless extended family many once were.
Grandparents who only see their grandchildren occasionally will only a tenuous relationship with them, of course, one especially prone to the sudden rupturing of divorce or separation. The breakdown of a relationship can have a profound effect on grandparents and they may be left with feelings of grief and loss, even if they never liked their child’s spouse
Not only must they watch as their son’s or daughter’s life is turned upside down but If they are the paternal grandparents, they must to face the very real possibility that they may never see their grandchildren again – unless a strong bond has already been built up between a mother and her former parents-in-law, that is. In other cases, visits may be grudgingly allowed as a kind of trade-off for maintenance payments. If a resident parent is struggling to maintain good relations with their former partner, pressure to maintain regular contact with the former partner’s parents may become an additional and unwanted burden.
There are other cases, of course, where the lack of contact results from sheer bloody-mindedness on the part of the resident parent. Having been hurt by the divorce, he or she takes revenge by obstructing the grandparents’ access at every possible opportunity, usually with little thought for the children’s happiness.
So what legal action is open to grandparents in such situations? In the past, contact orders were occasionally granted to grandparents – but only rarely. Today, however, they have become increasingly common as the courts increasingly recognise the importance of extended family members in the welfare of children.
Anyone can apply to a court for contact with a child, but there would need to be unusual circumstances for a grandparent to make a sole application. The courts will first consider the need for parental contact and may feel that there isn’t much time left for the grandparents beyond that. Nothing, of course, prevents extended family members from seeing the children during parental visits
If you wish to apply for contact with a grandchild, you must first apply to the court for “leave” to be heard. As the grandparent or step-parent you do not have parental responsibility, so you are not automatically entitled to make a court application in relation to a child. The court will consider the family circumstances and the role played by the grandparent within the family. For example, the court will distinguish between a grandparent who frequently assists with childcare and a grandparent who lives out of the country and sees their grandchild once every few years.
Once leave is obtained, the court will consider the practicalities. It will take into account the children’s wishes and feelings, as well as their established routine. Courts will prefer to make provision for the children to see grandparents within existing contact arrangements if possible, rather than carve the children’s time into smaller portions. The courst will also consider whether an actual legal order is needed or whether the family can reach an agreement amongst themselves.
They will normally also ask Cafcass to become involved as it is able to interview all parties and speak to the children. Its role in such issues is to investigate, take part in discussions and report to the judge with recommendations.
Sometimes, in more troubled families, grandparents may apply to take over the care of the grandchildren altogether – as in the case we highlighted earlier. But the courts will not give grandparents parental responsibility unless they already have a residence order, specifying that the children should live with them. And without parental responsibility a grandparent does not have the right to any say in schooling or medical treatment for example. But unless the children already live with the grandparents, the courts are unlikely to make that residence order, except in extreme circumstances where one or both of the parents are dead or thought to be incapable of looking after the children.
My advice would certainly be to discuss matters with the child’s parents at an early stage. Make it clear that you are not taking sides and that you simply want an on-going role in your grandchild’s life. Don’t play the blame game or get involved in the specifics of the divorce or separation.
But if that doesn’t work or you become worried about your grandchildren, don’t let the situation escalate. Instead, seek legal advice.
Finally – be realistic. If the grandchildren are only seeing your son or daughter once a fortnight, it is unlikely that you yourself will see them as much of them as you may like. Consider whether your application for a contact order should be linked to any issued by your son or daughter. And think too, about your role to date in the lives of your grandchildren. The courts will be more willing to consider an application by a grandparent to assist with childcare if you have historically been the babysitter of choice.