The plight of grandparents

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August 10, 2010

AFTER more than 25 years in family law, I am not easily shocked. However the plight of many grandparents, within a legal system that downgrades their contribution to family life and denies them automatic rights of contact with their grandchildren, has never ceased to disturb me.

Earlier this year, I advised the makers of Coronation Street on a dramatic storyline involving three of the soap’s characters: a six-year-old boy, fought over by his wayward father and his maternal grandfather. The storyline had been

envisaged with a courtroom custody battle as its climax. When I explained the time that this would take and the rarity of such a situation in real life, because of the legal hoops through which the grandfather would have to jump just to get through the door of that courtroom, the programme’s researchers were incredulous.

They aren’t the only ones. Squeezed out of family life following a divorce and missing their grandchildren terribly, the desperate grandparents who seek my team’s help are often horrified to discover that the blood relationship between a child and a grandparent means nothing in law.

Could this be about to change? Our Deputy Prime Minister Nick Clegg has highlighted the need to give grandparents rights to “step in” and care for grandchildren affected by family splits.

My own experiences working with grandparents have convinced me that a number of changes to the law are required. Divorce can be difficult for grandparents – even if they never liked their child’s spouse. Not only must they watch as a son’s or daughter’s life is torn apart but, in the case of the paternal grandparents (or rather, the parents-in-law of the primary carer), they must face up to the very real possibility that at best, they may see less of their grandchildren. At worst, they may never see their grandchildren again. If a resident parent is struggling to maintain good relations with their former partner, the need to maintain regular contact with the former partner’s parents can become an additional and unwanted burden.

I always advise concerned grandparents to behave impeccably and to avoid taking sides. This is easier said than done, but can help preserve amicable relationships in the long-term. By far and away the best solution is for family members to reach an agreement between themselves, without the involvement of the courts. Sadly, this isn’t always possible.

At present, grandparents must submit to a bumpy legal process if they want automatic access to their grandchildren or if, as in more extreme cases, they want their grandchildren to live with them. First, they must obtain leave of the court to make their application. If successful, only then may they apply for an order.

Given the state of law, many hapless grandchildren become caught up in an emotional, distressing tug of war. If they seek residence, for
example, the grandparents’ age can be counted against them and
grandchildren may be fostered and adopted by others.

In practice, although grandparents may apply to the courts, the potential impact on their grandchildren and the non-recoverable costs involved mean that in many cases, they simply give up.

These cases can be difficult. I will always remember the mother of two young children who came to see me for the first time, accompanied by the children’s devoted grandmother.

My client had terminal cancer; her husband had embarked upon an affair and had deserted the family. The grandmother told me how she hoped to take the children to live with her after their mother’s death. I had to tell the woman that, in reality, this was unlikely to happen.

Many grandparents are experienced, patient carers who put the children’s needs first, are economically sound and are generous with their time and their love.

So what needs to change?

Firstly, I would scrap the rule that grandparents must first obtain leave of the court before they are permitted to make an application for an order relating to grandchildren. It makes the process unnecessarily long-winded, and even more stressful, time-consuming and expensive than it needs to be.

Secondly, and for the same reasons, I would like the Government to move such cases away from the court system when possible. An alternative forum or tribunal, chaired by a trained mediator, would provide a less formal setting but its decisions would still be legally binding.

It could also have the advantage of bringing families closer together, rather than pitting them against one another and driving them further apart.

In 2010, many grandparents play a central, supportive role in family life. If the Government’s stirring talk turns into action, rather than fizzling out as so many of these well-intentioned “plans” are wont to do, it isn’t just grandparents who will benefit. We all will.

Marilyn Stowe is the senior partner at Stowe Family Law in Harrogate.