Good divorce week: Are grandparents the forgotten victims of divorce?

Divorce|November 29th 2018

I am in full support of this week’s Resolution Good Divorce Week campaign. Its focus is on minimising the effects of separation and divorce on children and seeking to ensure that they continue to have good relationships with both parents.

But during this week, I stopped to think about the children’s relationships with their extended family – are grandparents (and extended family) the forgotten victims of a divorce?

I often see the impact that divorce has on the whole family, not just the couple involved. Grandparents, aunties, uncles and cousins are all affected when a couple decides to separate. Yet whilst parents are quite rightly encouraged to think of their children, little thought is given to the grandparents. House moves, new partners, misunderstandings, blame and family rifts between the adults can all lead to a breakdown in contact between the children and their grandparents. This is often at a great emotional cost. Back in May this year, MPs called for an amendment to the Children Act which would include a child’s right to have a close relationship with members of their extended family.

The law currently states that grandparents must first seek the Court’s permission to apply for an Order to spend time with their grandchildren.

And they are doing so in large numbers. Statistics from the Ministry of Justice show that almost 2,000 applications for Child Arrangements Orders were made by grandparents in 2016. A rise of almost 24% since 2014.

So, what can you do? Below, I set out some of the most frequently asked questions I receive from grandparents who are devastated to have lost contact with their grandchildren.

Do I have the right to see my grandchildren?

There is no automatic right – but don’t lose hope. The law does recognise a child’s right to a family life and this is not necessarily limited to its parents. There are provisions within the law which allow you to ask the Court for the right to see your grandchildren. Many grandparents and wider family members have successfully re-established contact with grandchildren with the assistance of the Family Courts. The significant emotional, psychological and positive benefits to a child of a relationship with grandparents are well-known.

I’m being prevented from seeing my grandchildren – what can I do?

It may feel helpless but even if the relationship has broken down completely and all attempts to re-establish contact are met with parental hostility or a wall of silence, there is action you can take.

Child Arrangements Order

You can apply to the Family Court for an Order allowing you to spend time with your grandchildren. This is known as a Child Arrangements Order. The Order can also set out what other types of contact should take place between you and the children (e.g. video and telephone calls) and how frequently that should happen.

Permission to Proceed

Yet before that application can proceed, the vast majority of grandparents will first need permission from the Court to apply for a Child Arrangements Order. In deciding whether to grant permission, the Court will apply Section 10 (9) of the Children Act 1989. It will consider your application from the perspective of the child, having regard to:

(a) the nature of the proposed application,
(b) your connection with the child, and
(c) whether there is any risk that the proposed application would disrupt the child’s life to such an extent that they may be harmed by it.

Each case is decided on its merits and in most cases, permission is granted. This allows your application for a Child Arrangements Order to proceed to the second stage.

The decision as to whether you can spend time with your grandchildren will ultimately be decided by the Court against a range of statutory factors with the children’s welfare being the Court’s paramount consideration.

Essentially, the question for the Court to decide will be – given all of the circumstances of the case, is it in the children’s best interests to spend time with you?

When is the best time to act?

First, I suggest seeking initial advice from a specialist family law solicitor to discuss your situation. Deciding to take things further is a delicate balancing act, act too soon and it may elevate tension within the family. This is particularly important if the parents are engaged in negotiations or Court proceedings of their own – you don’t want to make things worse. However, a significant delay in resolving the issue can cause emotional harm to both the children and you.

Is there any way of avoiding court proceedings?

It really depends on how damaged the relationship is. It’s difficult because the grandparents are often one step removed from discussions between parents. If the lines of communication are still open, mediation is a helpful tool to meet face-to-face and try and come to an agreement with the assistance of an independent third party. You will, in any event, be required to demonstrate attendance (or an exemption from attending) a Mediation Information and Assessment Meeting with a mediator before applying to the Court, so my advice is to consider mediation as early as possible.

Get in touch

We have a team of experienced family law solicitors who have dealt with a range of disputes involving grandchildren and can advise you what steps to take. You can contact them at the details below.

Author: Rebecca Calden-Storr

Rebecca is regularly instructed on all financial aspects of family law and relationship breakdown including divorce, separation, cohabitation, variation and enforcement of financial orders and international issues.

Comment(1)

  1. Helen Dudden says:

    I have been one of those grandparents, involved in changing the law.
    Mine is slightly different, international law. English Court system and Spanish Civil Code, very expensive and difficult.
    I’ve been seeing my grandchild, they asked for me. The Alienation after an illegal retention caused a total break for his father, my son.
    I never had the legal right, that never was allowed to happen, but a very upset child asked for me.
    My son, has not spoken to me in five years, I’ve paid a price to help a child.
    That’s the reason I helped, international law, is expensive and when it fails, it fails badly.
    There was a pro bono written by Freshfields for ACAS, trying to resolve these issues, it never was used.

Leave a Reply

Close

Newsletter Sign Up

For all the latest news from Stowe Family law
please sign up for instant access today.

Privacy Policy