3rd August 2018 ❘

Grandparents’ rights

When relationships break down, it can be grandparents who suffer and end up having limited or no contact with their grandchildren. But what are grandparents’ rights?

Grandparents’ rights to see their grandchildren

Unfortunately, grandparents’ rights do not include an automatic right to see their grandchildren.

However, the family courts do recognise that grandparents can play an invaluable role in many children’s lives and there are mechanisms for grandparents to ask for contact with their grandchildren.

Grandparents should always try to reach an agreement with the parents or carers of the child, but if this cannot be agreed then grandparents can, in some instances, make an application to the Court.

Before an application to the Court is made, any grandparents will have to attend a Mediation Information and Assessment Meeting, unless there is an exemption.

Grandparents’ rights regarding Child Arrangement Orders

A Grandparent can make an application to the court for a Child Arrangements Order, which is an order setting out where a child will live and who they will spend time with.

Generally, it is only people with parental responsibility who can apply for a Child Arrangements Order and Grandparents’ do not automatically have parental responsibility. However, grandparents can ask for permission to apply and the courts will look at numerous factors for example;

  • The involvement of the grandparents in the children’s lives
  • The nature of the application
  • The views of the parents
  • Whether the application may be harmful to the child

The Courts will look at each case individually and decide whether permission should be granted to the grandparents to make the application.

The Court will always consider all of the child’s circumstances and will only make a Child Arrangements Order when they consider it better for the child than making no order at all.

Grandparents’ rights: Special Guardianship

If care proceedings are issued in relation to a child, or if a child’s parents are unable to look after their children, then it is possible for grandparents to be appointed as a Special Guardians for their grandchildren.

A Special Guardianship order provides the Special Guardians with parental responsibility which can be used without consulting others with parental responsibility, e.g. the child’s parents.

If a grandparent is put forward as a Special Guardian, then the local authority will undertake an assessment to evaluate whether they are suitable. A Special Guardianship order is intended to provide the child with a permanent placement until they reach the age of 18.

A parent or someone with parental responsibility is able to make an application to the Court to discharge a Special Guardianship Order if they can show that there has been a significant change in their circumstances since the Special Guardianship Order was made.

Grandparents’ rights after adoption and foster care

Matters can become more difficult for grandparents after their grandchild is fostered or adopted.

When a child is taken into care, the local authority has a duty to promote contact with the child’s birth family, provided that it is consistent with the child’s welfare. Unfortunately, contact with the grandparents is rarely seen as a priority by Children’s Services as they have to give first consideration to parents. Therefore, any grandparents’ rights, in reality become redundant.

An order providing for contact with the grandparents can be made at the same time as an adoption order. This would mean that after adoption, the child would still spend time with their birth grandparents. However, in practice this is very rare unless the adoption is within the family.

Do grandparents’ rights allow them to adopt their grandchild?

There is technically nothing in law preventing a grandparent from adopting their grandchild. However, the family relationship tends to become skewed with the child’s natural grandparents becoming their legal parents. This is why Special Guardianship Orders are generally favoured over adoption orders for Grandparents who are applying to have their grandchildren live with them on a permanent basis.

Grandparents’ rights after the death of a parent

Grandparents’ rights do not include an automatic right to care for their grandchildren upon the death of one or both parents.

An uncle or aunt of the child may be more naturally a carer for the child from an age point of view, but often uncles and aunts have existing commitments to their own children. In these cases, grandparents may be better placed to take over the child’s care. Usually, families can decide these issues between themselves.

It is important to remember that anyone who makes a will with young children should consider who they want to appoint as a Guardian for their children if they die. A member of our Wills, Probate and Trusts team can provide further advice on appointing a Guardian under a will and safeguards to put in place to ensure that any Guardian has financial support to enable the children to be looked after.

If you require any more information about Grandparents’ rights, please contact a member of the family team here.