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The Royal rift and the rights of a grandparent

A closer look at the rights of grandparents, in particular, where the relationship between grandparent and parent has broken down.

Meghan and Harry’s recent Oprah interview sent shockwaves through the Royal Family and beyond. The news that the couple is expecting another child was overshadowed by Harry’s revelation that Charles has “stopped taking his calls”. Relations appear to be strained, and Charles and Camilla may be left wondering when they will next see their grandchild and whether they will get to meet the new arrival.

Many grandparents face similar difficulties following family fall outs. It is not uncommon for parents to refuse grandparents contact with their grandchildren following a family feud. Grandparents can also find themselves alienated from their grandchildren in situations where the relationship between the parents breaks down and they decide to separate. Quite understandably grandparents can be left feeling confused and rejected, even though they may have played no part in the split.

In this article, we consider the rights of grandparents, in particular, where their relationship between grandparent/parent has broken down.

Rights of a grandparent

In the UK, a grandparent has no automatic legal ‘right’ to spend time with their grandchildren if the parents deny them access. In such circumstances there are various steps a grandparent can take to try to re-establish contact with their grandchild/grandchildren. Court proceedings are one option available to grandparents, but should be viewed as a last resort.

Alternatives to an application to court

A court application can place immense pressure on all parties concerned and can, on occasion, raise the temperature, making it more difficult to repair strained relationships. It is for this reason that we normally recommend, in the first instance, trying to keep an open dialogue with any estranged family member, with a view to trying to achieve a resolution direct. It can often also help to talk matters through, with a third party such as a family therapist/counsellor.

There are however a wide range of non-court based solutions, such as mediation, collaborative law, arbitration or solicitor led negotiations. Such processes are referred to as alternatives to dispute resolution (“ADR”). Further information in relation to ADR can be found in our helpful guide: Non-Court/Alternative Dispute Resolution (ADR) options for separated couples.

Applying to court

If, having explored alternative dispute resolution options, discussions ultimately breakdown, it is open to a grandparent to apply to court for a Child Arrangements Order. Such an order can regulate the arrangements for a child to spend time with their grandparent. 

Stage 1: Application for leave

Before a grandparent can make a court application they will need to seek leave (permission) of the court to make the substantive application. There are some exceptions to this rule including situations where the grandparent has parental responsibility for the child or the child has been living with them for over three years.

When considering whether to grant permission, the court will consider:

  • the grandparent’s connection with the child;
  • the nature of the application; and
  • whether contact between the grandparent and the child could be potentially harmful to the child’s wellbeing

At this stage of the proceedings when the court is simply considering whether to give permission to a grandparent to make an application for contact, the child’s welfare is not the paramount consideration. If permission is granted, then when hearing the substantive application, the child’s welfare will become the court’s paramount consideration.

A copy of the grandparent’s application will be served on the parents and anyone else who has been caring for the child. They can then choose to oppose the application for permission should they wish to do so.

Stage 2: Child Arrangements Order

The vast majority of applications for leave/permission are successful, but that does not necessarily mean that the court will make an order for contact. That being said, generally the court does recognise the valuable role that grandparents play in the lives of their grandchildren and will normally be supportive of a grandparent’s application unless there is good reason for refusing contact.

Any grandparent who overcomes the first hurdle of obtaining permission will be required to follow the court process and if one or both parents raise objections, they may need to attend several court hearings. Full details of the court process for child arrangements proceedings can be found in our guide: Contested Proceedings / Child Arrangements Programme.

Welfare principle

When considering the main application, the court will consider all the circumstances of the case and will undertake a careful analysis of what is in the child’s best interests. They will also take into account what is known as “The Welfare Checklist”. This includes:

  • the ascertainable wishes and feelings of the child in light of their age and understanding;
  • their physical, emotional and educational needs;
  • the likely effect on them of any change in circumstances;
  • their age, sex, background and any individual characteristics which may be relevant;
  • any harm they have suffered or are at risk of suffering;
  • how capable each of the parties are at meeting the child’s needs; and
  • the range of powers available to the court.

What orders can a court make?

There are various orders the court can make, the most common being direct (face to face) contact. Sometimes however the court will deem indirect contact to be more appropriate, either on a short term or long term basis. Indirect contact can include letters and telephone contact. If for example, a significant period of time has passed since the grandparent and their grandchild last spent time together then the court may be inclined to order a period of indirect contact, before contact can then progress to face to face contact.

Ultimately the court will only make an order if it considers that it would be better for the child than making no order at all. On occasion, where a lot of hostility remains between the child’s parents and the grandparent, the court may be reluctant to impose substantial direct contact for fear that the child may suffer emotional harm if caught in the middle of adult conflict.

For further information, we invite you to listen to our recently recorded podcast which considers the rights of a grandparent.

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