As you will no doubt have seen in the national media, MPs are calling for changes to the law to help grandparents maintain contact with their grandchildren. The story actually relates to a debate in the House of Commons last week, moved by Nigel Huddleston MP. He began the debate thus:
“I beg to move, … “That this House has considered grandchildren’s access right to their grandparents.”
Not a great start, containing two glaring errors in just that second sentence. Firstly, we have not used the terminology ‘access’ for the best part of thirty years, since it was replaced by the term ‘contact’, and secondly it is of course incorrect to talk of ‘rights’ for grandparents, or indeed parents. It is not about the ‘rights’ of the adult, but about the welfare of the child.
OK, leaving those points to one side, what exactly is Mr Huddleston and his supporters seeking on behalf of grandparents? Well, he uses the rather misleading phrase “automatic rights to see their grandchildren”. This suggests that grandparents should have such a ‘right’ without needing to obtain a court order, and that the ‘right’ would be enforceable, perhaps with the assistance of the police. In fact, I don’t think he means any such thing. What I think he means by ‘automatic rights’ is doing away with the need for grandparents to apply for the leave, or permission, of the court before they can proceed with their application for a child arrangements (i.e. contact) order.
I have no problem with the issue of leave being reconsidered, as suggested in the debate by Gloria De Piero MP, but as Lucy Frazer, the Parliamentary Under-Secretary of State for Justice said: “grandparents do not usually experience any difficulty in obtaining permission when their application is motivated by a genuine concern for the interests of the child.” She also pointed out that the Family Justice Review recommended that the requirement for grandparents to apply for leave should remain as it is because it “prevents hopeless or vexatious applications that are not in the interests of the child.”
Unfortunately, there is further confusion with regard to Mr Huddleston’s other suggested reform. Iain Stewart MP, for example, said this:
“There are legal ways of getting access but they are too cumbersome and the barriers are too big. Many of the grandparents I have met do not want to go down that road, either because they cannot afford it or because they just do not want the anguish. It is a barrier that should not be there—there is a problem to address immediately.”
And Dr Matthew Offord MP said:
“Many grandparents are of an age that means that time is of the essence. They are not able to go down a legal route; many people would find that difficult not only financially but emotionally.”
The clear suggestion here is that grandparents should not have to go to the trouble and expense of court proceedings, and should somehow secure their ‘right’ of contact with their grandchildren by some other route. But they must, of course, go through courts, unless the matter can be agreed, either directly with the parent(s), or through mediation. In a contested case you can’t provide grandparents with a method of obtaining contact that does not involve the courts. To be fair to Mr Huddleston, he did admit that: “Some kind of court action is probably required, but we can make it a hell of a lot easier.”
What Mr Huddleston is actually proposing is that the ‘shared parenting presumption’ in section 1(2A) of the Children Act 1989 be extended to include grandparents, or extended family members. In other words, the court should presume, unless the contrary is shown, that involvement of those people in the life of the child concerned will further the child’s welfare. To be honest, I can’t see such a presumption making much difference to the outcomes decided by the courts, just as the shared parenting presumption made little difference to outcomes. The courts are already fully aware that contact with grandparents is usually a good thing for the child, and this is absolutely clear from precedents, i.e. previous decisions that are binding upon the courts. But it is possible that such a presumption may change the culture, as Mr Huddleston said, thereby making it more likely that matters will be agreed.
In short, I’m not sure that either of these proposed reforms will do much to help grandparents. They will not stop many grandparents having to apply to the court, and they will do little to reduce the time that it takes to obtain and enforce an order, a particular complaint raised in the debate.
There is one other important point. One may wonder why the issue of grandparents’ ‘rights’ is being raised now. That may well be to do with the increase in court applications by grandparents. As Mr Huddleston explained, there has been a significant rise in such applications since 2014. Could this possibly be to do with the lack of legal aid, which was abolished in 2013? We all know that having lawyers increases the possibility of matters being resolved by agreement. Gloria De Piero MP also made the point about lack of legal aid for grandparents. Could restoring legal aid actually be the best way to help them?
You can read the full House of Commons debate here.