ASK A FAMILY LAWYER
Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues. This week’s query goes to Amy Foweather, a solicitor in our Harrogate office.
“My son and daughter-in-law have divorced and I am struggling to see my grandchildren. What are my legal rights?”
Quite naturally most grandparents don’t picture having to fight for a relationship with their grandchild(ren). However, time and time again we see grandparents getting caught in the crossfire of parental disputes following an acrimonious separation. This can ultimately mean the child(ren) and grandparents missing out on what can be an important and precious relationship.
Of course, during any acrimonious separation most grandparents instinctively want to take sides and become involved. However, in practice we often see this causing more harm than good. Although it may be easier said than done, it is often best to remain neutral, whilst still offering support. Grandparents should take a step back and consider how they can be involved by helping. In many cases, grandparents can do so by providing stability and support for their grandchild(ren) and offering respite to the parents. It is not uncommon for grandparents to help with handovers to prevent parental conflict in front of the children. We also frequently see cases where grandparents provide invaluable by assisting or supervising contact where necessary. It is therefore important to consider all options with regards to how grandparents can be involved, rather than jumping into any separate proceedings head first.
What does the law say about private family disputes?
Grandparents do not have automatic legal rights to spend time with their grandchild(ren). However with the leave of the Court they can make an application to spend time with their grandchild(ren). As grandparents do not automatically have parental responsibility, being granted leave is the first step.
As with any application made by parents, all options must first be exhausted, including mediation. In some cases a mediation exemption may apply. A solicitor will be able to notify you if an exemption applies or set up mediation on your behalf. It is always in the best interests of all parties and the child(ren) to resolve matters out of court. A solicitor can also help negotiate reasonable arrangements through correspondence.
Whilst grandparents require permission from the court, they should not be dissuaded. Whilst it is last resort, some grandparents are left with no alternative. The Courts do recognise that grandparents have a valuable role to play and that unless there is evidence to the contrary – such as violence, abuse or similar ‘safeguarding’ concerns – it is in the best interests of the child(ren) for there to be a relationship. The court’s paramount consideration will always be what is within the child(ren)’s best interests. On this basis, the Courts do make orders for grandparents to spend time with their grandchildren.
A solicitor will be able to advise on the merits of each case at the outset and ensure that the court has all of the information it needs to make an informed decision. A solicitor will also be able to advise on a reasonable frequency for such visits. Just like the resolution of any child arrangements, every case is different. It is therefore important to seek advice which is specific to your case right at the start.
When should we make an application?
Quite often, grandparents want to make an application as soon as possible. However, this can sometimes only serve to fuel the fire between the parents and increase hostilities. In the majority of cases, it is not advisable to issue an application whilst the parents themselves are still going through proceedings or disputing child arrangements. It is often best to wait for things to calm down. Whilst upsetting, the priority in most cases has to be ensuring the parents make arrangements at first instance and to avoid unnecessary conflict. A solicitor can advise on appropriate timings.
What if my son or daughter doesn’t see the children but we as grandparents do?
If one of the parents doesn’t see the children – by choice or otherwise – this does not prevent the grandparents from having a relationship. The same principles and processes will apply.
What is the court process?
Subject to leave (permission) being granted, the process is the same as that between parents. At the first Cafcass will prepare a short ‘safeguarding’ letter for the Court. This will include initial background checks with the police and children’s social care. They will also undertake a short telephone call with each party to ascertain their position. Parties to proceedings will usually include the applicant grandparent(s) and the parents.
Once these initial safeguarding checks have been made, Cafcass will make initial recommendations to the court. As long as there are no safeguarding concerns, the matter is likely to be allocated to the magistrates. It is hoped that the parties can then reach an agreement. This can then be drafted into a legally binding order.
However, in the unfortunate event of an agreement not being reached, the matter will be listed for a ‘final hearing’. This is when the court will hear evidence and order what arrangements will be put in place. If possible, parties should avoid a final hearing. This is not only due to the cost implications –final hearings can damage relationships still further still further and they take the decisions out of the hands of the people involved.
What other legal orders are available?
In addition to seeking time with the grandchild(ren), it may, in some cases be appropriate for grandparents to consider other orders. For example, to be the primary carer and seek a special guardianship order. This could still fall under the umbrella of private law proceedings – i.e. cases featuring individual family members. Special guardianship orders are usually granted when the grandparents have been the main carer – when, for example, tragic circumstances have left the grandchild(ren) without their parents.
If you need any advice regarding grandparents’ rights or are thinking about making an application, it is important that you seek independent legal advice as soon as you can.
What are public law proceedings?
Whilst the majority of problems that occur relate to the loss of contact by grandparents with their grandchildren when their own children’s relationships break down, there are many other situations in which grandparents can find themselves in need of advice and assistance.
This is particularly the case when the local authority has become involved, and where a child may be placed with foster carers and/or subject to a care order. In these circumstances grandparents will often wish to maintain contact with their grandchildren and they may even wish to put themselves forward as the main carer.
It is possible for grandparents to be joined as a party to any existing proceedings that have been brought by the local authority although, similarly to private law proceedings, grandparents will need to obtain the leave of the court to make such an application.
Public law is a separate and complex area of law. If you have any concerns or questions regarding public law proceedings, it is important to speak to a solicitor who specialises in these cases.