It is sadly the case that when parents separate their children can lose contact with one of the sets of grandparents.
It may, for example, be that the children live with their mother, who does not want them to have contact with the father’s parents. Or it may simply be that the father has no contact with the children, and his parents then lose contact with them.
Whatever the situation, what rights do grandparents have to see their grandchildren?
The first thing to say here is that it we should not really talk in terms of ‘rights’ when it comes to children. Even parents do not have a ‘right’ to see their children. As we will see in a moment, it is all a question of what is best for the welfare of the child.
Grandparents require leave of the court
If a grandparent is not able to secure contact with a grandchild by agreement with the parent with whom the child is living, either directly or through mediation, then they can apply to the court for a contact order, just as a parent can apply for a contact order.
The only difference between an application by a parent and an application by a grandparent is that, before they can make the application, the grandparent must first obtain the leave (or permission) of the court to make the application.
The application for leave is actually made on the same form as the contact application itself, but the court will obviously hear the leave application first.
There has been some debate in parliament in recent years over the requirement to obtain leave, with it being argued that it makes it unnecessarily harder for grandparents to see their grandchildren. However, back in 2012 the Family Justice Review recommended that the requirement be retained, because it “prevents hopeless or vexatious applications that are not in the interests of the child.”
So what will the court consider when deciding whether to grant leave? Well, the law states that the court should have particular regard to the nature of the proposed application that the grandparent wishes to make, the grandparent’s connection with the child, and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.
In practice, most grandparents are likely to be granted leave.
Will the court grant the grandparent contact?
The next question is: how will the court approach the contact application itself?
Well, the court will approach the application in the same way as an application of a parent. As indicated above, it will base its decision upon what is best for the welfare of the child, having regard to such matters as the ascertainable wishes of the child, the likely effect upon the child of any change, any harm that the child is at risk of suffering, and how capable the grandparent is of meeting the child’s needs.
The court will also of course take into account any objections a parent may have to the making of a contact order.
In general, however, the court will take the view that contact with a grandparents is normally likely to be a good thing for the child.
If the court does find that contact with the grandparent is in the child’s best interests then it will make a contact order. There are no rules as to how much contact the court will order. This will vary from case to case, but is obviously likely to be less than the contact a parent would be awarded, in terms of amount and frequency.
Just as with parental contact, the contact can be in the form of direct contact with the child (which could even include overnight staying contact) and/or indirect contact, for example by phone, letters/cards, email or text messaging.