What rights do grandparents have when it comes to spending time with grandchildren?

Grandparents often have a special relationship with their grandchildren. Many parents look to grandparents to assist with childcare due to the costs otherwise involved. However, when relationships break down the unfortunate reality is that in England and Wales grandparents do not have an automatic right to see their grandchildren.

The family court recognises that grandparents often play a very valuable role in the lives of their grandchildren, and there are ways in which grandparents can seek to spend time with their grandchildren by agreement or via a court order.

Ideally, a grandparent should initially try to reach an agreement with the parent or carer of the child as that will normally be in the best interests of the child.

In practice, grandparents will usually see a grandchild when the child spends time with their mother or father. Where this is not possible, an independent family mediator can help families with trying to reach an agreement. Some mediators will be qualified to speak with the child as part of the mediation process.

Where agreement cannot be reached informally, grandparents can make an application to the court for a Child Arrangements Order under the Children Act 1989, which is an order that sets out, for example, whom a child will live with and whom they will spend time with. Unless they are exempt, a grandparent will only be able to apply to court once they have attended an initial mediation session, known as a Mediation Information and Assessment Meeting (MIAM).

Unlike a parent or step-parent who has parental responsibility and so can apply automatically for a Child Arrangements Order, grandparents typically first require permission from the court before they can apply for such an order. As they do not have parental responsibility, they are not automatically entitled to apply for one unless an exemption applies (for example, the child has lived with them for a period of at least a year prior to the application).

Each case will be treated individually based on its own particular facts. When a court considers an application for permission, the welfare of the child is not its main consideration. Instead, the court will initially consider the nature of the application, the grandparent’s connection with the child and any risk of the application disrupting the child’s life to the extent they would be harmed by it. If permission is granted by the court, a grandparent can then proceed with the application for the Child Arrangements Order.

The court will then consider a number of factors including the involvement of the grandparent in the child’s life, the views of the parents and the likely impact of the application on the child. At this point, the child’s welfare will be “the court’s paramount consideration” (section 1 of the Children Act 1989).

If somebody with parental responsibility opposes the application, a full hearing will probably be needed, so the court can hear evidence before making a decision. Grandparents should take advice as early as possible to ensure they are equipped to persuade the court that they have a meaningful and ongoing relationship with their grandchild which should be maintained.

Grandparents and Special Guardianship Orders

A Special Guardianship Order (SGO) can be made by the family court to place a child with somebody other than their parent on a long term basis. SGOs may be made where care proceedings have been issued in relation to a child or where a child’s parents are unable to look after them for any reason. The first consideration of the court when considering an application for an SGO is the welfare of the child.

The effect of an SGO is that it provides the person(s) appointed as special guardian for a child with day to day parental responsibility, which can be exercised without having to consult anybody else who has parental responsibility, such as the child’s parents. The SGO is intended to provide the child with a permanent placement with the special guardian until they turn 18 years of age.

An individual can apply to be a special guardian if they are over the age of 18 and are not the parent of the child. It is therefore possible for grandparents to be appointed as special guardians for their grandchildren. There are a number of different ways a grandparent may be able to apply for an SGO, including if they are a relative of the child and the child has been living with the grandparent for at least one year before making the application.

The Local Authority will be required to investigate the application and prepare a report, so that the court can decide whether or not to appoint a special guardian. Applications for SGOs are often complex and so legal advice should be taken as early as possible.