Advising Grandparents Of Their Rights
A recent Reddit post had social media at loggerheads recently. A father had asked for opinions on a ‘list’ he had drawn up before the birth of his first baby, stating the dos and don’ts for guests when they came to see the newborn.
New parents can be anxious about their tiny bundle, often worrying about how to keep the vulnerable little human they have just created, safe and warm. However, this new dad appeared, to many, to take his responsibilities too far.
Demands such as ‘no children’ coming to see the newborn, or that guests were not allowed to wear strong perfumes, not only left people on social media calling the new father ‘precious’, it also caused an uproar with both his parents and his in-laws.
The new grandparents, obviously excited about the new addition, felt that the father had no right to make the demands, and that it was their ‘right’ to see the baby.
What rights do grandparents have over a grandchild?
As any solicitor knows, no grandparent has automatic rights. Even parent’s, although they have ‘parental rights’ to do many legal things, can only exercise those in their duty to care for the child and if it is in their best interest – they do not have an automatic right to do whatever they like with the child as if it were a possession.
Grandparents are seen as important members of the family by courts, and unless there is a reasonable excuse, access to grandchildren will often be granted, but for some this can involve a lengthy and costly litigation process.
They will be limited to apply for a Contact Order, which can be objected to by either or both parents. If this is the case, a grandparent will need to persuade the court that they had a meaningful and ongoing relationship with the child and that it is in their best interest to continue the contact.
How would you advise a client who has been denied access to their grandchild?
Sarah Jane Lenihan, partner at Stowe Family Law, London Victoria, told us:
“In my experience, most families can reach an agreement out of court to arrange times that grandparents can spend with their grandchildren but sadly there are some families that are not able to.
If this is not successful then under the current law, the grandparents would need to ask for a ‘leave of the court’. This is the court’s permission for an application to spend time with the child. They are required to complete an additional court fee and a possible court hearing to establish why they should have permission to see the child.
The court will consider:
- The nature of the proposed application.
- The applicant’s connection with the child.
- Any risk of disrupting the child’s life to such an extent that they would be harmed by it.
- When the child is being looked after by a local authority what the authority’s plans for the child’s future are, and the wishes and feelings of the child’s parents.
If permission is obtained, then the court will use the same factors to determine the grandparent’s application as they would with parents.
The overriding principle of this decision is the child’s welfare and grandparents need to satisfy the welfare checklist but there is no presumption by the courts, as there is with parents, that there should be contact between a grandparent and child unless there is a good reason not to.
Does the law need to change? Absolutely.
If you have a client who has been cut off from their grandchildren, advise them to write or meet with their local MP, letting them know how they are being impacted, this will help further a change to the law.
Secondly, advise the grandparents to explore all routes before considering court proceedings, such as writing a letter and mediation.”
Madelaine Hailey at Kuits Steinart Ley LLP said:
“The primary consideration in grandparent contact applications should be the welfare of the relevant child, over and above the views of the adults. However, the view of the parent or parents will by necessity form part of the court’s consideration, particularly if contact with the grandparents would be so negative for the parents that it would in turn cause harm to the child.
“Hostility alone, however, is not sufficient to prevent the court from making an order for contact with grandparents if it determines it is in the child’s interest for contact to take place. In that case consideration should be paid to how best to manage the anxieties and difficulties existing between the adults. It is also available to the court to make an order for indirect contact – for example, letters and gifts – if face-to-face contact is more likely than not to prove too disruptive.”
Jennifer Curtis from Maguire Family Law:
“Of course, each case is different and all involve their own facts. A different approach can be needed depending on the dynamic between the parent(s) and grandparent(s). My advice to grandparent clients is to always put the child first at every point during the dispute.
“Although there is no presumption of contact for grandparents (as exists for parents), assuming there are no welfare concerns regarding the child or children, courts will tend to be sympathetic to a grandparent or grandparents who want to make a positive impact, by having genuine and committed involvement in their grandchild or grandchildren’s lives. Grandparents can be an important way for a child to maintain a link to one side of the family, particularly if one parent has died or moved away.
“The parties should always be encouraged to negotiate from the offset, and have a continued dialogue throughout the proceedings. This approach often delivers outcomes far better suited to each party’s circumstances, and indeed the children’s own needs, than a court-led decision.
“Another point that I always make with clients in these circumstances is that court orders can be updated and changed down the line as trust is rebuilt between the parties, and indeed as children grow up and their needs change.”