One of the common misconceptions surrounding family law is that grandparents have an inherent or automatic right to see or spend time with their grandchildren - in other words, have grandparents’ rights. There is nothing enshrined in law to grant grandparents automatic rights based on their biological connection alone. However, the happy fact is that a court would rarely deny grandparents access to their grandchildren unless there is a specific reason to do so.
Here we outline three of the different legal avenues open to grandparents to get access to their grandchildren:
- Child arrangements order to spend time with your grandchildren
- Special guardianship order
- Adoption of grandchildren by grandparents
Child arrangements order to spend time with your grandchildren
If for any reason a person with parental responsibility were to object to, or try and prevent you from seeing your grandchild, and you cannot reach agreement with them, you will need to make an application to the court for a court order.
There is no automatic legal right so therefore, the court order that results from the court process would enshrine your legal rights and responsibilities as a grandparent. The court application is a two-step process:
- apply for permission to apply for a Child Arrangements Order
- apply for a Child Arrangements Order.
What is a Child Arrangements Order?
A Child Arrangements Order (CAO) is an order regulating arrangements relating to either of the following:
- with whom a child is to live, spend time or otherwise have contact, and
- when a child is to live, spend time or otherwise have contact with any person.
Getting permission to apply for a Child Arrangements Order
The court will consider a number of factors before granting you permission to apply for a COA, as follows:
- your history of contact with your grandchild
- what you are seeking by way of contact – times, locations etc and
- whether what you are seeking would be beneficial for your grandchild.
Applying for a Child Arrangements Order
The court recognises the value and importance of a child spending time with their grandparents. The court has to balance this with the wishes of the children and the wishes of the parents (which are not necessarily the same) and each case has its own unique facts. These situations can be fraught with difficulty and should be carefully navigated. A skilled family lawyer, with access to mediation services, may be able to help prevent hostilities escalating and the involvement of the courts.
The court has a number of principles that they consider before making a CAO. However, the paramount consideration is always the welfare of the child. For example, the court will consider:
- the existing arrangements that you have in place and that the parents have in place
- whether the arrangements you seek would take away time from the parents, in such a way that it would not be in the child’s best interests.
What is a Child Arrangements ‘no order’ principle?
Another key principle is the ‘no order’ principle, whereby the court will not make an order if they do not think the order would further the welfare of that child.
An example of where a CAO might not be given (or perhaps not in the terms requested) would be where there was history or allegations of domestic abuse surrounding the grandparent. If there were allegations of this nature, the court would determine on a balance of probabilities whether these allegations were true at a fact-finding hearing, and then consider whether they should make a CAO, and on what terms. Even in such circumstances, the court may still determine that the children can spend time with their grandparent, but only in such a way as to protect that child’s welfare (perhaps through contact taking place remotely or being supervised).
It would only be in very extreme circumstances where the court would determine that no contact should be allowed at all with a grandparent.
What if a parent objects to a grandparent seeing their grandchild?
If a parent objects, then they may raise their reasons with the court. The court will then consider what information they require to make a decision as to the best arrangements for the child.
What if I have a Child Arrangements Order in place, but the parents are preventing me from seeing my grandchildren?
This is an upsetting and frustrating situation, but one that unfortunately many people find themselves in. The court will consider why this has happened and what can be done to facilitate the arrangements without difficulty going forward.
The court has in place a number of mechanisms which it can apply to the parent, to enforce your CAO, including:
- parenting courses
- compensation to be paid (e.g. you had travel tickets that were not used because contact was prevented)
- compulsory unpaid work (otherwise known as community service)
- a fine
- imprisonment – this is an extreme enforcement mechanism, and one the court is unlikely to use, as it would result in depriving the children of their parent. However, if they continue to breach a CAO (which by its nature is in place because it supports the wellbeing of that child), then they risk harming their children’s welfare. Therefore, repeated breaches without reasonable excuse might in some cases result in imprisonment.
In order to make one of the above enforcement orders, the court has to be satisfied beyond reasonable doubt (which is more than a 50/50 probability) that someone has failed to comply with a CAO. In the first instance, the court will look at trying to resolve the issues, rather than move to enforcement.
Can Coronavirus be used as a reason to stop me seeing my grandchildren?
An example of this would be where a parent decided that, in light of government restrictions surrounding Coronavirus, it would not be safe for their children to visit their grandparents and stopped contact. It is likely that the court would be satisfied this was sufficient, but would expect alternative forms of contact to continue (for example, video calling or social distanced meeting outside). If you have a Child Arrangements Order from the court in place, and the parent frustrates contact, there is a ‘reasonable excuse’ defence which they can invoke. It’s likely that Coronavirus issues would be considered valid – although every case is different.
Special guardianship order
This is intended for situations when the children cannot live with their birth parents and require secure accommodation. Often the court will look to blood relatives in such a situation and this includes grandparents. A Special Guardianship Order is quite different to a CAO. It differs in the following ways:
- the children live with you so it requires far more responsibility on the part of the grandparent
- the parent must apply to the court to have permission to discharge it, so it is a much more secure arrangement in that the parents cannot fail to adhere to it at whim.
Unlike adoption (see below), a Special Guardianship Order (SGO) does not cut the legal tie of automatic parental responsibility, between a child and their birth parents.
In order to apply for a Special Guardianship Order, as a grandparent, you need to have one of the following:
- have in place a CAO
- have lived with the child for 3 out of the last 5 years, or because you are a relative of the child, have had the child live with you for the year immediately before application
- have consent of the local authority (if the child is in care)
- have consent of those with parental responsibility (usually the birth parents but also anyone else with a CAO)
- have permission of the court.
The SGO will override any existing care order and gives you parental responsibility, which can be exercised to the exclusion of others with parental responsibility. However, there are limits to an SGO which are:
- you cannot change the child’s surname or
- remove them from the jurisdiction (of England and Wales) for three months or more without consent of all those with parental responsibility.
Adoption of grandchildren by grandparents
Adoption is a draconian but sometimes necessary measure that will completely sever the legal link between a child and their parents. If the child is not in care and both of their parents are alive, it is rare that an adoption order will be appropriate. However, it can happen and an example of where adoption by a grandparent might be appropriate, would be where a single mother decides that she does not want to raise her child.
Parents can consent to their child being adopted or generally placed for adoption. The child will need to be six weeks old or older for parents to give such consent. If a child is placed into adoption, the courts will prefer adoption by a blood relative over a stranger.
However, every situation is different, and the starting point is taking specialist legal advice. At Tees, we are here to help you navigate your options and decide which avenue is right for you.