House of Commons Library

Grandparents' rights to access to grandchildren

Published Monday, April 24, 2017

This House of Commons Library briefing provides information in anticipation of the debate, entitled "Grandparents' rights to access to grandchildren" and sponsored by David Mackintosh, which will take place on Tuesday 25th April in Westminster Hall at 4.30pm.

Summary

Access for grandparents to their grandchildren should initially be sought through agreement with the parents or carers of the child. However, where this cannot be agreed, the grandparent can seek the leave of the court, and if successful, apply for a child arrangements order to agree access.

 

Child arrangements orders were introduced through the Children and Families Act 2014 (replacing contact and residence orders) and decide where a child lives or the contact they have with any person (or both); when determining whether to make, vary, or discharge such an order, a court’s “paramount consideration” is the welfare of the child.

 

The process for grandparents usually differs from the process that parents undertake, as grandparents have the additional step of first requiring leave of the court to apply. This additional step is in place “to act as a filter to sift out those applications that are clearly not in the child’s best interests”.

 

The granting of leave does not raise any presumption that the application for a child arrangements order will succeed.

 

The Labour Government produced a Green Paper in 2010 setting out an intention to remove the requirement to seek leave of the court. The Family Justice Review was then set up in March 2010 and supported by the Coalition Government when it came into government. The Review reported in November 2011 that “the need for grandparents to apply for leave of the court before making an application for contact should remain. This prevents hopeless or vexatious applications that are not in the interests of the child”. The Government accepted this recommendation and this remained the government position of the Coalition and current Conservative Government.

 

This policy applies to England and Wales. In Scotland it is the Children (Scotland) Act 1995 which covers child access. As in England and Wales, grandparents do not have an automatic right to see their grandchild, as they do not have automatic parental responsibilities and rights (PRR). However, under Section 11 of the Act, they can apply for a court order seeking contact with the child.

 

For more information, see the House of Commons Library briefing paper on this subject entitled 'Children: Grandparents and others who require leave of the court to apply for access' which can be found here.

 

Recent parliamentary questions

Asked by: Blunkett, Mr David | Party: Labour Party

To ask the Secretary of State for Education, what plans she has to ensure that recent findings of the Local Government Ombudsman relating to grandparents and their grandchildren following family breakup are acted on by local authorities.

Answering member: Mr Edward Timpson | Party: Conservative Party | Department: Department for Education

We issued ‘Family and Friends Care: Statutory Guidance for Local Authorities’ in 2011. This guidance is clear that children and young people unable to live with their parents who are brought up by family and friends should receive the support they and their carers need to safeguard and promote their welfare, whether or not they are looked after.

The guidance requires local authorities to develop and publish clear, easily accessible policies to explain how they will provide assessment and support to children in the care of family and friends. In July 2013 I wrote to all local authorities to remind them of this requirement and to request they notify the Department of their policy. To date, 144 of 152 (94%) of local authorities have sent us links to their policies.

To aid transparency, we have agreed that the Family Rights Group (FRG), one of the leading voluntary organisations supporting family and friends carers, will publish the links to these policies on its website. FRG are now reviewing the content and quality of these policies and we are planning to provide feedback to local authorities on findings from this work.

25 Feb 2015 | Written questions | Answered | House of Commons | 224631

 

Asked by: McCabe, Steve | Party: Labour Party

To ask the Secretary of State for Justice, what assessment he has made of the adequacy of existing arrangements for grandparents to have access to their grandchildren following the divorce of the parents of those children.

Answering member: Simon Hughes | Party: Liberal Democrats | Department: Ministry of Justice

When making any decision about a child’s upbringing the court’s paramount consideration will be the welfare of the child.

The Government believes that the existing arrangements for grandparents to spend time with their grandchildren in cases of parental dispute are effective and do not unfairly disadvantage grandparents.

Child arrangements orders are able to deal with all the arrangements needed for a child in a single order, and that could include arrangements for spending time with grandparents where the court is considering this as an issue.

19 Feb 2015 | Written questions | Answered | House of Commons | 223947

 

Asked by: McCabe, Steve | Party: Labour Party

To ask the Secretary of State for Education, how many grandparents acted as kinship carers for one or more of their family's children in each of the last five years.

Answering member: Mr Edward Timpson | Party: Conservative Party | Department: Department for Education

The Department for Education does not hold information on the number of grandparents who provide care to their grandchildren.

The Department issued ‘Family and Friends Care: Statutory Guidance for Local Authorities’ in 2011.[1] This guidance is clear that children and young people unable to live with their parents who are in the care of family and friends should receive the support that they and their carers need to safeguard and promote their welfare, whether or not they are looked after. It sets out a requirement on local authorities to develop clear, easily accessible policies to describe how they will assess and support children in the care of family and friends.

[1] www.gov.uk/government/publications/letter-from-edward-timpson-on-statutory-guidance-for-family-and-friends-care

05 Jan 2015 | Written questions | Answered | House of Commons | 219302

 

Asked by: McCabe, Steve | Party: Labour Party

To ask the Secretary of State for Education, what support her Department offers to grandparents and other older people who act as kinship carers.

Answering member: Mr Edward Timpson | Party: Conservative Party | Department: Department for Education

The Department for Education does not hold information on the number of grandparents who provide care to their grandchildren.

The Department issued ‘Family and Friends Care: Statutory Guidance for Local Authorities’ in 2011.[1] This guidance is clear that children and young people unable to live with their parents who are in the care of family and friends should receive the support that they and their carers need to safeguard and promote their welfare, whether or not they are looked after. It sets out a requirement on local authorities to develop clear, easily accessible policies to describe how they will assess and support children in the care of family and friends.

[1] www.gov.uk/government/publications/letter-from-edward-timpson-on-statutory-guidance-for-family-and-friends-care

05 Jan 2015 | Written questions | Answered | House of Commons | 219301

 

Asked by: Austin, Ian | Party: Labour Party

To ask the Secretary of State for Work and Pensions, whether his Department plans to offer childcare services to grandparents that care for grandchildren.

Answering member: Priti Patel | Party: Conservative Party | Department: Department for Work and Pensions

The Government recognises the crucial role that working grandparents play in providing childcare and supporting working families. We have therefore announced plans to extend shared parental leave and pay to working grandparents, and will consult on these later this month.

In addition, all grandparents who are the kinship or responsible carers for children are already able to access a universal free early education entitlement place for any three or four year old in their care, and grandparents may also be able to access a free early education place for any two year old in their care if they are eligible.

05 May 2016 | Written questions | Answered | House of Commons | 35557

 

Asked by: Berry, Jake | Party: Conservative Party

To ask the Secretary of State for Justice, how many applications by grandparents for rights of access to their grandchildren there were in each year since 2010.

Answering member: Caroline Dinenage | Party: Conservative Party | Department: Ministry of Justice

Under the Children Act 1989 the court may make a child arrangements order to determine with whom a child is to live or spend time. Prior to 22nd April 2014 such orders were called contact and residence orders. The Department collates figures on the numbers of applications made by grandparents for child arrangements orders and the figures for such applications since 2010 are shown below.

Number of child arrangement (contact) order applications made by grandparents in England and Wales

Year       Applications by grandparents

2011      2403

2012      2574

2013      2755

2014      1624

2015 – 3 quarters only     1335

 

Unlike parents, grandparents and other family members can only make an application for a child arrangements orders with the permission of the court. The requirement to apply for the court’s permission is not designed to be an obstacle to grandparents, or other close relatives, but to act as a filter to sift out those applications that are clearly not in the child’s best interests. Experience suggests that grandparents (or other interested relatives) would not usually experience difficulty in obtaining permission where their application is motivated by a genuine concern for the child.

The Department does not collate figures on applications for a child arrangements order where the court’s permission has been sought. This information could only be obtained by manually checking each case file at disproportionate cost. Similarly, the Department does not collate figures centrally on family members named in a child arrangements order. Details of the numbers of child arrangements orders issued specifically for grandparents to see their grandchildren could only be obtained by checking each file at disproportionate cost.

05 Jan 2016 | Written questions | Answered | House of Commons | 20479

 

Press articles

Thousands of grandparents missing out on 'nanny tax credit' that boosts state pension

The Telegraph, 18 January 2017

 

Thousands of grandparents launch court battles so they can see their grandkids

The Mirror, 21 February 2015

 

Do Grandparents Have a Right to See Their Grandchildren?

The Huffington Post, 11 September 2015

 

Grandparent access: Your stories

BBC News, 31 March 2011

 

Commons Debate packs CDP-2017-0120

Authors: Andrew Mackley; Tim Jarrett

Topic: Children and families

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