What rights are there for spending time with grandchildren?
Grandparents often have a special relationship with their grandchildren, but when relationships break down the unfortunate reality is that grandparents do not have any 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 them in the event of a divorce.
Ideally, a grandparent should try to reach an agreement with the parent or carer of the children. That will normally be in the best interests of the children. In practice, grandparents will usually see a grandchild when the child spends time with their mother or father. Where this is not possible, grandparents can make an application to the court under the Children Act 1989 for a Child Arrangements Order, which is an order that sets out for example, whom a child will live with and whom they will spend time with.
Normally, it is only people with parental responsibility, such as parents or step-parents, who are able to apply for a Child Arrangements Order. Grandparents do not automatically have parental responsibility, so they will need to apply to the court for permission to file an application. Each case will be treated individually based on its own particular facts. The court will consider a number of factors including the involvement of the grandparent in the children’s lives, the views of the parents and the likely impact of the application on the children. When considering an application under the Children Act, “the child’s welfare will be the court’s paramount consideration” (section 1).
If permission is given, the court will have to consider all the relevant circumstances before deciding whether or not to make an order. 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. The court will have to consider whether the continuation of contact between a grandparent and their grandchildren could have a negative impact on the other family relationships and, even if so, whether this would justify the refusal of contact, given the importance that is placed on the relationship of grandparents with their grandchildren.
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 grandchildren 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 is the welfare of the child and a welfare checklist will be applied.
The effect of an SGO is that it provides the person(s) appointed as special guardian with day to day parental responsibility for a child, 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.
Somebody 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 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.
There is financial support and other services available for a special guardian, including counselling, support groups, therapy services and financial assistance. Unless the child was looked after by the Local Authority, there is no automatic entitlement to this support and an assessment will need to be requested. The Local Authority will consider the needs of the child and the needs of the special guardian as part of the assessment.
Applications for SGOs are often complex and so legal advice should be taken as early as possible.