A Straightforward Guide to Grandparents’ Rights, from our Family Law experts
When a relationship breaks down, this can have a wider impact on the family – such as when grandparents find they are no longer getting to see the children of the relationship. Grandparents have no automatic legal right to see their grandchildren (we call this ‘contact’ – what used to be known as ‘access’). This is because they do not have parental responsibilities and rights (PRRs) unless these have been granted by a court. PRRs include the right – and the responsibility, in terms of safeguarding and promoting the child’s upbringing – to spend time with the child. A mother who has given birth to the child will always have PRRs. Although things can be more complex for fathers if they are married to the mother or have been named on the birth certificate they generally have PRRs as well. This means that the starting point is that the parent(s) have a legal right to spend time with the child, which is not the case for grandparents or other relatives.
This does not mean that grandparents have no options. It may well be in the child’s best interests to spend time with them, especially if they have regularly done so before the split. A good first step is to try to come to an agreement with the child’s parents. Depending on how old the grandchild is, their views should also be taken into account. Family support and mediation services can help families discuss these issues, and we can refer you to a specialist mediator if needed. In some cases you might want to draw up a legal agreement in writing so everyone is clear on what’s happening, although this can’t be enforced in the way a contract for payment of money can.
If you can’t agree
If it’s not possible to reach agreement, a grandparent does not need to have PRRs to be able to ask a court to make an order governing contact. In making any decision about a child, including a decision on contact, a court must consider the child’s welfare above all else. The court must also take into account the child’s views if he or she is old enough to form and express an opinion (which nowadays usually means a child of 5 and older). Finally, a court can only make an order about a child if this would be better for the child than making no order would be. It will generally look to the parties to do everything they can to try to reach agreement before asking the court to decide.
It’s worth bearing in mind that a contact order is just that – an order that the child will see the grandparent on specified days and times. The court can’t regulate people’s behaviour or attitudes, so if relations are difficult there is a limit to what can be done about that legally. However, if a contact order is made, it is a contempt of court to wilfully disregard its terms and not allow the child to go.
When a grandparent might ask for PRRs
Grandparents can apply to the court for PRRs if appropriate. As stated above, this is not usually required if they just want to see the child (as opposed to, for example, having the child live with them or make legal or welfare decisions about them). Sometimes, however, it is appropriate for grandparents to apply for PRRs. The typical situation is where grandparents are caring for a child whose parent(s) is/are unable to do so (“kinship caring”). Sometimes this will be as a result of the social work department intervening in terms of their responsibility for child protection. In this situation, the purpose of having PRRs is to ensure the grandparents, since they have day to day care of the child, can make decisions as necessary to safeguard the child’s upbringing and are treated as having PRRS by third parties such as GPs and schools.