There is no doubt that grandparents often play a very important role in the upbringing of their grandchildren, whether that be by stepping in and caring for the children, whilst their parents are at work or whether it is just for fun at the weekends or during holidays.
The current position is that the Children Act 1989 does not afford grandparents any special status over and above that of any other third- party seeking time with children. This means that they are in the same position as any other person except for the children's natural parents.
However, the case law has made it clear that the courts value greatly the role of grandparents. Of course, many judges and magistrates are themselves grandparents. It means therefore that, before they can move forward to apply to spend time with their grandchildren, they need to seek the leave of the court to enable them to do so. It is therefore a two-stage process involving them convincing the court that it is in the children's interest for them to be able to pursue their application.
It is important to note that if, for example, the child’s natural father is being prevented from spending time with his child, then his application will be given priority and the paternal grandparents’ application for leave is unlikely to be granted at that first stage, on the basis that, if the father is spending time with the children, then they will have the opportunity to see them at the same time.
The success of the grandparents’ application sometimes will depend on them being reasonable with regard to the amount of time they wish to spend with them, for example once a month if, geographically they are close enough.
If the court agrees the grandparents can proceed with their application, the court will then go on to decide what is in the best interests of the children having regard to what is often known as the welfare checklist, which is a list of issues that the court considers when deciding what is in the best interests of the children.
You will not be surprised that the wishes and feelings of the children, considered in light of their age and maturity, will be something that is very relevant. However, the grandparents’ relationships with their grandchildren and the amount of time they have historically spent with them, will be very relevant factors.
I have come across cases where grandparents have not been successful because of concerns that they may undermine the parenting of, for example, their mother. In the circumstances, it is very important that the grandparents demonstrate that they can work with the parents and build bridges where necessary.
The courts have to be the absolute last option. The first thing to do is to see if the relationship between the parents and the grandparents can be repaired and that might involve, for example, family counselling or mediation.
I prepared this article prior to Covid 19 taking hold. I think on reflection it very much remains true. It may be even more painful for grandparents now suddenly in isolation for weeks on end to know they cannot ring or video link their grandchildren. The family courts are still open and working remotely, as are mediators, but perhaps a phone call or a letter at this time to a parent might be greeted with more understanding, as we are all coming to realise the vital importance of family during this pandemic.
If you have any questions about this or any other family matter, please call Gemma Gillespie on tel: 01892 515022
This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.