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Grandchildren's access rights to their grandparents

Published Thursday, April 26, 2018

On 2 May 2018, there will be a Westminster Hall debate on Grandchildren's access rights to their grandparents. Starting at 4:30pm, this is an hour-long debate sponsored by Nigel Huddleston MP.

This page summarises the current situation across the UK for grandparents who want better contact arrangements with their grandchildren.

 

England and Wales: child arrangements orders

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(s) can seek the leave of the court, and if successful, make an application for a child arrangements order to grant contact or residence. 

Unlike a child’s parents and certain other people prescribed in statute, a grandparent does not have an automatic reply to apply for a child arrangements order (unless they happen to qualify under one of the prescribed conditions).  Rather, they first have to be granted the leave of the court to apply.  It should be noted that the granting of leave does not guarantee a successful application for a child arrangements order.

Child arrangements orders were introduced through the Children and Families Act 2014, and replicate the same functions as the contact and residence orders that they replaced.  A child arrangements order sets out 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. While child arrangement orders can be made for a child or young person aged under 18 years, unless there are exceptional circumstances they cannot be made to have effect after a child reaches the age of 16 years old.

The Library briefing paper Children: Grandparents and others who require leave of the court to apply for access provides more information on this topic, and for further information on child arrangement orders more generally, see the briefing papers Children: residence and contact court orders and related matters for parents, grandparents and others and Children: Enforcement of child arrangements orders relating to contact.

 

Scotland and Northern Ireland

As in England and Wales, in Northern Ireland, grandparents do not have an automatic right to access but, after gaining permission from the Court, can apply for a Contact Order under the Children (Northern Ireland) Order 1995. blog from Life Law Northern Ireland explains the process in more detail.

In Scotland it is the Children (Scotland) Act 1995 which covers child access. Similarly, grandparents do not have an automatic right to see their grandchild, as they do not have automatic parental responsibilities and rights. However, under Section 11 of the Act, they can apply for a court order seeking contact with the child. More information can be found in the briefing from the Scottish Parliament, Contacts between grandparents and their grandchildren.

 

Prospects of reform

The Labour Government produced a Green Paper in 2010 setting out an intention to remove the requirement to seek leave of the court in England and Wales. The Family Justice Review was set up in March 2010 and supported by the following Coalition 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” [Family Justice Review, Final Report, November 2011, p21, para 110]. The Government accepted this recommendation in their response to the review, A system with children and families at its heart, published February 2012.

Neither the 2015 or 2017 Conservative Governments have expressed an interest in changing the rules. During the debate on Grandparents' Rights: Access to Grandchildren on 25 April 2017, the then Minister for Courts and Justice (Sir Oliver Heald) said:

"It is open to anyone, including a grandparent or other family member, to apply for a child arrangements order. However, the situation is not the same as that for parents; as has been said, grandparents and other family members usually need to obtain the permission of the court before proceedings can begin. This may appear to be an extra hurdle, but experience suggests that grandparents do not usually experience any difficulty in obtaining permission if their application is really about the interests of the child. Permission to apply may be sought at the same time as making the application itself, just by ticking a box—there is no extra fee, process, or hearing.

The leave requirement is designed not as an obstacle, but as a filter. The idea is to sift out applications that are not in the child’s best interests, such as vexatious applications. I reassure hon. Members that the law sets out clear objective criteria for the court to determine these issues."

During Prime Minister's Questions on 22 November 2017, Nigel Huddleston MP asked if the Government would consider giving grandparents a right of access:

Nigel Huddleston (Mid Worcestershire) (Con): "Divorce and family breakdown take an emotional toll on all those involved, but the family dynamic that is often overlooked is that between grandparents and their grandchildren. If access to their grandchildren is removed or blocked, some grandparents call it a form of living bereavement. Will the Prime Minister therefore join me, Dame Esther Rantzen and thousands of grandparents across the country in calling for a change to the law to give grandparents access rights to their grandchildren, as is the case in France?"

The Prime Minister: "My hon. Friend is absolutely right that grandparents do play an important role in the lives of their grandchildren. We can all, I am sure, sympathise with those who experience the anguish of being prevented from seeing their grandchildren if a parental relationship ends. Of course, when making decisions about a child’s future, the first consideration must be their welfare, but the law already allows family courts to order that a child should spend time with their grandparents. I understand that my hon. Friend has recently seen the Minister of State for Justice, and I am sure that the Ministry of Justice and the Department for Education will consider these points carefully."

During the April 2017 debate on Grandparents rights of access to their grandchildren, the then Courts and Justice Minister said “we will introduce a Green Paper later in the year on family justice, which will provide the opportunity to look at these issues and a number of others that hon. Members touched on”.  In February 2018, in response to the question to the Government asking when it “plans to publish his Department's Green Paper on family justice”, the Parliamentary Under-Secretary of State at the Ministry of Justice, Lucy Frazer, told the House: “I am clear that we need to look across the entire family justice system to make sure it is delivering the best outcomes for children and families, and protecting its most vulnerable users. We are working to consider what further changes are needed and will bring forward any proposals in due course” [PQ 125250, 01 February 2018].

In Scotland, the Government intends to review the Children (Scotland) Act 1995 "to ensure the interests of children and their need to form and maintain relationships with key adults in their lives – parents, step-parents, grandparents and other family members – are at the heart of any new statutory measures" [Review of the Children (Scotland) Act 1995, Scottish Government website, accessed 26 April 2018]. The Times reported that Scottish Ministers are “considering a legal presumption that children stay in touch [with their grandparents] after a divorce or separation, giving a strong signal to couples, courts and social workers” [“‘Grandpa law’ to help children stay in touch”, Times, March 2018].

Commons Debate packs CDP-2018-0110

Authors: Tim Jarrett; Alexander Bellis

Topic: Children and families

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