Increase in Grandparents Barred from Grandkids
Rosa Alexander (pictured), Family Solicitor at Wilsons Solicitors LLP, spoke to us about an increase in grandparents being barred from seeing their grandkids.
It is estimated that 42% of grandparents lose contact with their grandchildren following a relationship breakdown. Despite public outcry in the last 20 years for reform, the law remains that grandparents have no automatic right to see their grandchildren in England and Wales. Discretion remains with the parent or guardian, who, after an emotional breakdown or bitter divorce, may be unmotivated to encourage a relationship with their ex’s family.
Should a grandparent wish to turn to the Court for help, they cannot apply for a Child Arrangement Order (which regulates where the child lives and who they spend time with) without first asking permission from the Court. The Court will consider various factors, including the nature of the application, the connection the grandparents have with the children and any harm that may be caused by bringing the application.
Only in very specific matters will permission not be required, such as if the parents or guardian consents to the application or the child has lived with the grandparents for over three years.
However, the Family Courts do recognise the invaluable role that grandparents have the potential to play. Case Law tells us that a parent’s hostility towards a grandparent is not a good reason to prevent contact where other factors weigh in favour and confirms that the ultimate consideration is the child’s welfare. Therefore, contact should not be prevented unless there is good reason to do so.
While obtaining a Court Order is a positive step, as any Family lawyer will tell you, it can sometimes only be half the battle. Whilst Orders can be enforced, the Family Courts have few practical powers to force children to engage in a relationship if they are reluctant to do so (especially if they are discouraged by a parent). The Court has no jurisdiction to make a relevant Order for a child aged 16 or older, and the older they are, the more weight their view carries. This is not to mention the emotional and financial cost of continuing proceedings and the significant delays in hearing and listing applications in the Family Court.
For this reason, a more holistic approach between parents and grandparents, such as mediation or family therapy, should be encouraged as an alternative to court. This could mend the fractured relationship rather than force the issue. But parties must be willing to do so.
Despite various petitions and debates in Parliament to enshrine the rights of grandparents into statute, the law has yet to change, as Parliament is concerned about the floodgates of applications. The Law Reform Report in November 2011 concluded that the law should remain to stop “hopeless or vexatious applications that are not in the interests of the child.”
An alternative could be to take the same approach in The Netherlands, which with a recent change in Law meant that it was presumed that a Legal grandparent and grandchild had a close relationship and it would be for the parents to prove the opposite. A recent study showed that cases where a grandparent was admissible to bring an application rose to 97% in 2023, from 60% in 2020 to 30% in 2016. Likewise, in Belgium, the starting point is that contact between Legal grandparents and grandchildren is important for the development of that child and in their best interest, enshrining their rights into Statute.
Whether or not England and Wales will follow suit remains to be seen.
