Grandparents' rights - what do you need to know?

We at Fraser Brown are frequently asked what the grandparents’ rights are when they have been denied spending time with their grandchildren. The sad truth is that grandparents do not have an automatic right to spend time with their grandchildren. However, Family Courts do recognise the invaluable role that grandparents have to play in their grandchildren's lives and it is rare that the court would refuse a grandparent's application unless there is evidence of abuse or violence.

When a relationship or marriage breaks down, the acrimony can sometimes spread beyond the immediate family into the extended family, and what was once a whole family unit can sometimes find itself totally divided. There are occasions when one parent will stop their ex partner’s parents (or sometimes even their own parents) from seeing their grandchildren. If you find yourself in this situation you might wonder whether the Family Courts can do anything to help you, as usually people think that only the two parents would go to Court to ask to be able to see their child.

At Fraser Brown we have experience of representing grandparents who want to be able to spend time with their grandchildren. If you have always had a relationship with your grandchildren and this has been ended by one of the parents, then we can help you to reinstate that relationship. 

When a relationship breaks down often one of the primary concerns is what will happen to any children. Often people who are going through a separation or divorce are concerned that the Courts will automatically become involved in deciding the arrangements for their children, but this is not the case. If an agreement can be reached, then there is no need for that agreement to be formalised by going to Court. Some people may wish to have their arrangements placed in writing via a Solicitor’s letter, and if you want Fraser Brown to prepare such a letter to the other party, then we will agree the content of that letter with you to ensure that it does not cause any unnecessary upset or hostility. 

Whenever there is a disagreement concerning a child, there are a number of options available to resolve the dispute and it is possible to resolve matters without going to Court.

Mediation

When an area of dispute arises and it is quite clear that you and the other party are not going to be able to resolve it between you, then we would suggest that you speak to a family law expert at Fraser Brown. Where appropriate, we will suggest that a letter is sent to the other party setting out your proposals and suggesting that if matters cannot be agreed then a referral should be made to Mediation. If we do not receive any response or we do not receive a positive response then we will arrange for such a referral to be made. Mediation is a voluntary process and no-one can be forced to attend, although you will usually be asked to go to a Mediation information session to show that you have tried to resolve the case without the need to refer the matter to the Courts.

Once we have sent the referral form to the Mediator, they will contact the other party to see whether they will agree to go to an information meeting. This first meeting is usually free and the purpose of the meeting is to tell you what can and cannot be done at Mediation. You can go to an information meeting with the other party or you can go to separate meetings. After the information meeting either one of you might decide that Mediation is not for you, in which case one of you might decide to try to resolve the matter through Solicitors correspondence or by issuing proceedings at Court.

If both of you decide that Mediation is something that you would like to try, then an appointment will be set up at the Mediator’s office and the Mediator will aim to get the two of you to have a frank and meaningful discussion to see whether an agreement can be reached. The Mediator is not a Judge; they do not take sides and they will not impose a decision or judgement at the end of the process. The Mediator will not give either of you any legal advice, but you can take legal advice from your Solicitor both before and after a session of Mediation.

Anything that you propose at Mediation is confidential and “without prejudice”. This means that if you make a proposal (or you accept a proposal), but the Mediation subsequently does not work out and one person issues proceedings at Court, then neither party can make reference within those Court proceedings to anything said within the Mediation session.

Mediation is not suitable in every case, particularly where there has been any domestic violence or abuse. However, in cases where Mediation is suitable, then, provided that it is effective, it can be a less costly and a less time consuming way of resolving a dispute as opposed to dealing with matters solely via the Solicitors or via the Courts.

Going to Court to Sort out the Arrangements for Children

Sometimes it is not possible to resolve an area of disagreement without one person asking the Courts to intervene. You should appreciate that you are not allowed to merely launch into Court proceedings straight away and you also need to be aware that it is highly unlikely that your case will be resolved at the first hearing. The process can take many months to conclude and you may have to go to Court a number of times before you achieve a result. Except for in exceptional circumstances, or where there has been violence, you will need to refer the dispute to a Mediator in the first instance to see whether the matter can be resolved that way.

The Court can deal with any areas of dispute concerning the arrangements for a child. 

Any decision made by the Court will be based upon what the Court believes to be in the best interests of that particular child. To determine what is in a child’s best interests, the Court refers to a welfare checklist, which includes factors such as the following:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
  • The child’s physical, emotional and educational needs;
  • The likely effect on the child of any change in circumstances;
  • The child’s age, sex, background and any characteristics of the child which the Court considers relevant;
  • Any harm which the child has suffered or is at risk of suffering;
  • How capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant is of meeting the child’s needs;
  • The range of powers available to the Court. 

As a grandparent you do not have an automatic right to apply to the Court for an order, you have to ask the Court for leave (permission) to make an application for an order relating to a child. When asking the court for leave, they will consider the following:-

  • The applicant’s connection with the child
  • The nature of the application 
  • Whether the application might be potentially harmful to the child’s well-being in any way.


How do you apply to Court for an order?

Except for in exceptional or urgent cases you will firstly need to show the Court that you have tried to resolve the dispute without engaging the Court process. We will refer your case to a Mediator, who will see whether the other person will agree to come and learn about Mediation. If they do not agree or if you go to learn about Mediation and then decide that it is not right for you, then you can start Court proceedings.

Fraser Brown will complete the application form for you to check, and once you have approved it, we will send it to the Court together with a cheque to cover the fee payable. The Court will send a copy of your application to the person(s) named as the Respondent(s) and you will all receive a notice confirming the date upon which your first hearing will take place. Before the first hearing takes place, you should be contacted by a person known as a “CAFCASS Officer”. The purpose of this person contacting you is for them to find out about any worries or concerns that you have about the child and for them to take a brief look into the backgrounds of both of you. The CAFCASS Officer will check whether either of you has had any involvement with the Police or Social Services. A short report known as a “safeguarding letter” is then sent to all parties and the Court. Whilst CAFCASS will endeavour to have this report with you and the Court before the first hearing, it is not always possible to meet the Court’s deadlines.

You should appreciate that it is unusual for a case to be resolved at a first hearing. The first hearing is a procedural hearing where the Court will decide what other steps need to be taken or what evidence needs to be gathered to progress the case. The Court might order, for example, that CAFCASS should become more involved in the case and they should prepare a full report dealing with the welfare of the child concerned. Such a report would make recommendations and it is unlikely that the Court will depart from those recommendations when a final order is made (in most cases). 

It is likely that there will be a number of hearings to consider evidence or reports as they are put together. Whilst the Court is unlikely to impose any final decision until all the evidence has been collated and the reports (if any) have been prepared, at Court we will try to liaise with the other person or their Solicitor outside of the Courtroom to see whether any agreement can be reached. Even if a partial agreement can be reached (for example if you are applying to have your grandchild(ren) a number of nights per week but the other party is only offering one night), then the partial agreement can be recorded in writing and the Court can be asked to make that agreement into a Court order, which will last until the Court have made their final decision later on in the case.

If matters cannot be resolved by agreement, there will have to be a final hearing where you and any witnesses that you have asked to give statements will be asked to give oral evidence. Usually you will have a Barrister to represent you at a final hearing. A great deal of cases do resolve themselves before reaching this stage and it is still possible to settle the case by agreement at Court on the day of the final hearing.

Whether the final hearing takes place or whether matters are agreed outside of the Courtroom, a final order will be made and this will be binding on both parties.

What happens if one person does not abide by the order?

Where a Court Order has been made concerning a child, then the Order will have a warning attached to the end of it which states that a person who does not comply with an order can be held in contempt of Court and be committed to prison or fined, and/or the Court can make something known as an enforcement order requiring the person who has breached the order to pay financial compensation.

In the first instance it is sometimes sensible to write to the person concerned to ensure that your worries are set out in writing and you can ask them to ensure that they do not breach the order again, failing which you will consider enforcement proceedings. If a person continues to deliberately breach the order, then an application can be completed and sent off to Court. Upon receipt of the application, the Court will list the matter for a short hearing to determine the way forward. 

 

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