How will the proposed ‘Jade’s Law’ impact on parental and grandparental rights?

With the conference season in full swing, it was The Conservative Party’s turn on Monday, to descend upon Manchester and kick off a week of speeches, leaks, tag-lines and soundbites. Amongst the standard deluge of polished political announcements and the concomitant media furore, a thought provoking new law was proposed by Justice Secretary, Alex Chalk.

In his speech on Tuesday, 3 October, he announced his intention to table ‘Jade’s Law’, in honour of a young woman named Jade Ward, who was murdered by her former partner and father of her four young sons. In the wake of the tragedy, Jade’s parents, the boys’ maternal grandparents, assumed responsibility for their care and continue to look after them today.

Upon being convicted, the children’s father, Russell Marsh applied to the court to maintain a level of control over the lives of his children and by extension, those of Jade’s parents. He retains the right to receive reports on his children’s progress and their medical records, as well the ability to prevent them travelling abroad without his permission.

Aside from the practicalities of such an arrangement, it remains the case that the children’s grandparents have to go to their daughter’s killer, albeit through the court and ask his permission to do certain things, such as apply for a passport, for example. It is a state of affairs which Jade’s father, Paul Ward describes as “absolutely shocking”, and an ongoing arrangement by which bereaved families are forced to confront, and be reminded of, the most harrowing event in their lives.

What is being proposed in Jade’s Law’?

Alex Chalk is proposing that in circumstances where one parent has killed the other, they will be automatically stripped of their parental rights upon conviction, a measure which will stay in place for the duration of their time in prison.

The proposed law will be incorporated into the Victims and Prisoners Bill, originally introduced in March 2023 and currently in the Report stage in the Commons. The proposal has cross-party support so, in any event, it is likely to become statute at some point in the future.

This new law may provide comfort to a thankfully small number of families who find themselves in such a devastating situation and it raises interesting moral and philosophical questions about the rights of parents and how they can be stripped away by the state. With that said, Jade’s case, although at the extreme end of those in which grandparents might take over parental responsibility, also raises the issue of what rights they actually have.

What rights do grandparents have to see their grandchildren?

Although few would argue with the benefits of a child having a healthy relationship with their grandparents, there is no automatic legal right for a grandparent to spend time with their grandchildren. Therefore, if a parent wishes to deny a grandparent contact with their child, they are entitled to do so. That is not to say however, that grandparents have no avenues open to them to re-establish contact.

There can be many reasons why a grandparent has been excluded from the lives of their grandchildren. For example, there may be a difficult relationship with their own children; maybe they interfere in the decisions their children make; or perhaps they have genuine concerns about the care their grandchildren may receive. Some of these issues are more surmountable than others and the best route to a resolution often begins with a conversation.

When tensions are high and views entrenched, those conversations may often seem impossible, or inevitably descend into further animosity, which in turn, further undermines the relationship between the parents and grandparents. Before resorting to the court however, there are various ways to have those conversations in a more formalised setting and moderated by professionals.

How can mediation help with access to grandchildren?

Mediation is a process by which members of a family can negotiate the key sticking points and the complexities of the issues which divide them and with the assistance of a neutral third party, try to reach an agreement that all involved can live with.

Depending on how cordial relations are, a mediator can either moderate a conversion between the parties in the same room, or they can act as a conduit between them, relaying the key concerns of each side to the other while they remain physically separate. Often, the latter can progress to the former if the initial sessions are fruitful.

Although a mediator is not empowered to tell parties what to do, or facilitate an arrangement which is enforceable, they can encourage compromise and re-inforce the communication that is key to resolving any dispute, ultimately fostering an agreement that the parties themselves arrive at.

Can grandparents go to court to get contact with their grandchildren?

Although, as mentioned above, a grandparent has no automatic legal right to spend time with their grandchildren, that is not to say that the courts will not choose to step in when invited to do so. Under section 8 of the Children Act 1989, it is possible for a grandparent to apply to the court for a Child Arrangements Order. This is an order of the Family Court, which is enforceable and which would set out the terms under which a grandparent may spend time with their grandchild.

Traditionally, the courts have recognised the importance of grandparents being involved in children’s lives and, save for instances in which there has been violence, abuse or neglect, it is likely that a grandparent will be granted permission to spend time with their grandchild. Before paying the court fee and applying to the court for permission to file an application for a child arrangements order, the applicant grandparent must attend a Mediation Information Assessment Meeting (a MIAMs).

What are MIAMs?

A MIAM is an initial session each party has with a mediator, in order for them to assess the disputed issues and make a professional assessment as to whether the parties would benefit from mediation. If the mediator thinks that they would, they can invite them to engage in the process.

If they do not think the process will be suitable, or where the parties have tried to engage with the process and not reached an agreement, the mediator will provide a mediation certificate, which then enables the grandparent to apply to the Family Court.

How does the Family Court and CAFCASS deal with applications from grandparents?

If negotiation and mediation fail, then unfortunately the grandparent has the inevitable choice of either, not seeing their grandchild, or making a formal court application and have a judge determine the matter. Once the court is involved in cases involving children, a judge will focus solely on what is in the best interests of the child.

The court will make an assessment as to whether contact would be beneficial for the child and, if so, under what circumstances, and at what frequency, it should occur. At this stage, a judge will weigh up the relationship that preceded the dispute, the nature of the difficulties between the grandparents and the parents and most importantly of all consider the positive or negative impact resuming contact may have on the child.

To assist in these deliberations, the court will enlist the help of the Children and Family Court Advisory and Support Service (CAFCASS), who will send an officer to speak with all involved, including the child (subject to its age). They will then compile a report and make recommendations to the court, as to whether contact is appropriate and, if it is, what form it should take. Although they are not bound to do so, it is usual for a judge to follow the recommendations made by CAFCASS.

Whether you are a grandparent looking to re-establish contact with your grandchildren, or a parent who has received a request from a grandparent to have contact with their grandchild, Thomson Snell & Passmore’s highly experienced Family team would be happy to assist. With seasoned mediators amongst their ranks, the team is well placed to advise and facilitate mediation on a range of family matters, as well as support you through the court process where necessary.