Grandparents rights?
One of the common misconceptions surrounding family law is that grandparents have an inherent or automatic right to see or spend time with their grandchildren – in other words, have grandparents’ rights.
There are no automatic rights for grandparents based solely on their biological connection. However, the happy fact is that a court would rarely deny grandparents access to their grandchildren unless there is a specific reason to do so.
Here, we outline the different legal avenues open to grandparents to get access to their grandchildren:
Child Arrangements Order to spend time with your grandchildren If, for any reason, a person with parental responsibility were to object to or try to prevent you from seeing your grandchild, and you cannot reach an agreement with them, you will need to apply to the court for a court order.
Because there is no automatic legal right to contact grandparents, the Child Arrangements Order would be the document that sets out your legal rights and responsibilities as a grandparent.
The court application is a two-step process:
1. apply for permission to apply for a Child Arrangements Order
2. apply for a Child Arrangements Order.
What is a Child Arrangements Order? A Child Arrangements Order (CAO) is an order regulating arrangements relating to either of the following: with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person.
Getting permission to apply for a Child Arrangements Order. The court will consider a number of factors before granting you permission to apply for a CAO, as follows: your history of contact with your grandchild what you are seeking by way of contact – times, locations, etc and whether what you are seeking would be beneficial for your grandchild.
Applying for a Child Arrangements Order. The court recognises the value and importance of a child spending time with their grandparents. The court has to balance this with the wishes of the children and the wishes of the parents (which are not necessarily the same), and each case has its own unique facts.
These situations can be fraught with difficulty and should be carefully navigated. The Support Path will be able to guide you to mediation services to help prevent hostilities from escalating and the involvement of the courts.
The court has several principles that it considers before making a CAO. However, the paramount consideration is always the welfare of the child. For example, the court will consider: the existing arrangements that you have in place and that the parents have in place whether the arrangements you seek would take away time from the parents in such a way that it would not be in the child’s best interests.
What is the ‘no order’ principle? Another key principle is the ‘no order’ principle, whereby the court will not make an order if they do not think the order would further the welfare of that child.
An example of where a CAO might not be given (or perhaps not in the terms requested) would be where there was a history or allegations of domestic abuse surrounding the grandparent. If there were allegations of this nature, the court would determine on a balance of probabilities whether these allegations were true, possibly at a fact-finding hearing and then consider whether they should make a CAO and on what terms. Even in such circumstances, the court may still determine that the children can spend time with their grandparents, but only in such a way as to protect that child’s welfare (perhaps through contact taking place remotely or being supervised).
What if a parent objects to a grandparent seeing their grandchild? If a parent objects, they may raise their reasons with the court. The court will then consider what information they require to decide on the best arrangements for the child. What if I have a Child Arrangements Order in place, but the parents are preventing me from seeing my grandchildren? This is an upsetting and frustrating situation that, unfortunately, many people find themselves in.
The court will consider why this has happened and what can be done to facilitate the arrangements without difficulty in the future. The court has in place several mechanisms which it can apply to the parent to enforce your CAO, including: parenting courses compensation to be paid (e.g. you had travel tickets that were not used because contact was prevented) compulsory unpaid work (otherwise known as community service) a fine, imprisonment – this is an extreme enforcement mechanism, and one the court is unlikely to use, as it would result in depriving the children of their parents.
In the first instance, the court will look at trying to resolve the issues rather than move to enforcement. The Support Path can help you navigate the family law process.
