4 July 2017

Grandparents are Special – but what are their legal rights?

By Rob Colwell, Head of Family Law, Hayes + Storr

When it comes to legal rights in relation to children, the all-important words are ‘parental responsibility’ – or PR as it’s more simply referred to. In most cases this means only people with PR can make an application in relation to a child – and that applies to the birth parents as named on the birth certificate, step-parents if applied for after marriage, or legal guardians. You’ll notice that an important group who could be considered to have ‘parental responsibility’ (the clue is in their name) are missing from that list – grandparents. Sadly, grandparents do not have any automatic rights with regards to their grandchildren.

However, family courts often recognise the vital role grandparents play in their grandchildren’s lives – and whilst their rights are limited, they can apply to the court for permission (leave) to apply for a Child Arrangement Order. The court will then take the following matters into consideration;

• The applicant’s connection with the child(ren) in question

• The nature of the application itself

• Whether the application could be harmful to the child(ren)’s wellbeing in any way. This may include whether the court feels a grandparent’s continued contact with the child(ren) might have a negative impact on the rest of the family.

Although the court will only refuse an application in extreme circumstances, it’s almost always best to see it as a last resort. The effective use of an amicable solicitor’s letter and mediation can prevent family differences escalating, enabling all parties to move forward and
act in the best interests of the grandchild(ren). In fact, attending mediation is a legal requirement for both grandparents and parents prior to court proceedings, although in a limited number of situations mediation can be made exempt.

If mediation fails, grandparents can then apply for permission (leave) of the court to consider a Child Arrangement Order, and this permission is normally given at the first hearing. At the hearing, the court will set down directions at the same time. Any safeguarding concerns
will also be raised by a CAFCASS (Children and Family Court Advisory and Support Services) child welfare officer at the initial hearing.

The court will have already provided notice of the application to all those with parental responsibility. There may be objections to the application, so it’s important that grandparents obtain good quality legal advice – and obtain it early.

If the grandparents’ son or daughter (the person with parental responsibility for the child) is estranged from the family, the court will expect that parent to reunite with the child and make the application on behalf of the grandparent(s) in the first instance – with the aim of reintroducing them back into the child’s life gradually. The grandparent should not be the one making the initial attempt – unless they are left with absolutely no alternative.

Hayes + Storr has helped many grandparents reunite with their grandchildren and we offer a reduced rate to discuss all options, which includes clear advice in writing after the meeting. If you would like any further advice or information on this matter, please call Rob on 01328 863231 or send an e-mail to rob.colwell@hayes-storr.com. For legal advice on any other matter call 01328 863231 or email: law@hayes-storr.com.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

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