Most grandparents have a close and loving relationship with their grandchild(ren). However, the sad reality is that their relationships are discounted following a relationship breakdown. Some grandparents are left with little or no alternative but to apply to Court for a Child Arrangements Order to regularise contact with their grandchild(ren).
The legal process may seem very daunting to a grandparent whose only wish is to see their grandchild( ren ). For many grandparents, unfortunately, this is often their only option. In fact, the latest available figures from the Ministry of Justice show that in 2013, 2,755 applications for a Child Arrangements Order were made by grandparents. In 2014 this fell to 1,624 and for the first nine months of 2015, 1,335 applications had been made.
The general presumption is that a parent should have contact with their child unless there are cogent reasons to the contrary. There is no such presumption for grandparents.
A grandparent faces a number of hurdles when seeking the assistance of the Court. As a result, a grandparent may wish to exhaust all other options available to them before applying to the Court. A grandparent may, for example, try and resolve matters through mediation.
Unlike parents, grandparents do not have an automatic right to apply for a Child Arrangements Order unless their grandchild( ren ) has(have) lived with them for one year immediately preceding the application, or for a total period of three years in the time prior to making an application. If neither of these exceptions apply, a grandparent must make an application to the Court for permission to apply for a Child Arrangements Order. When considering an application, the Court will consider:-
- the nature of the proposed application for a Child Arrangements Order, ie the reasons for applying in the context of the parties’ personal circumstances;
- the grandparent’s connection to the child; and
- any risk the proposed application may have on disrupting the child(ren) ’s life(/lives).
The list is not exhaustive. Each application will turn on the facts. If an application is successful, a grandparent will have permission to apply to the Court for a Child Arrangements Order.
Once permission has been obtained, a grandparent will then need to apply for a Child Arrangements Order. When making an application, a grandparent will need to demonstrate that they have tried to resolve matters through mediation (or another means of alternate dispute resolution). If a grandparent has not already attended mediation, they must do so before making an application. If mediation is unsuccessful or otherwise deemed to be unnecessary or unsuitable, the mediator will complete a “MIAM certificate” which will enable a grandparent to proceed with an application for a Child Arrangements Order. Once an application is made, a grandparent could be required to attend three hearings to finally determine matters, unless suitable contact arrangements can be agreed upon in the meantime.
Generally speaking, there is no presumption in favour of grandparents having contact with their grandchild(ren), however, Thorpe LJ in Re J (a child) [2002] EWCA Civ 1346 recognised the “valuable contributions” grandparents make. This has also been recognised by the government with proposed plans to introduce shared parental leave for grandparents.
There is much debate as to whether a grandparent should be given greater recognition for their role in the upbringing and care of their grandchild( ren ). The current legal process may seem to be onerous and unfair to a grandparent, however, such a process is not limited to applications by grandparents. The above process will also apply to extended family members such as aunts and uncles.