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Grandparents Rights to Access
Friday 14th January 2011
It is almost certainly the case that many grandparents today play a fundamentally different role to that played by their own grandparents when they were children. Society has changed radically, and irrevocably, in ways which impact upon the relationship between grandparents and their grandchildren in modern society, especially in two main areas.
Firstly, it is now the norm for the greater majority of mothers to work at least part time (indeed, part of the last Labour Governments impetus, in terms of the family, was to make it easier for that to happen by the provision of better day care through nursery placements, albeit there is plenty of psychological argument that this may have been misconceived) which has led to an increasing role of grandparents as front line back up day carers.
Secondly, there has been a huge increase in the number of failed marriages, often leading to the fracture of relationships between the parental side of the family who do not ultimately end up caring for the child or children of the marriage. Factor in the additional increase in non-matrimonial relationships, and the number of children whose relationship with their grandparents is affected increases markedly.
Statistics tell us that there are upwards of 14 million grandparents in the UK, with one in ten of those being people who are under 50 years of age. In fact at the age of fifty four more than half of the adult population is a grandparent, and each grandparent has an average number of 4.4 grandchildren!
Sadly statistics indicate that up to 1 million children are denied access to their grandparents due to parental separation. This can deprive children of an understanding of their family roots and destabilise their sense of personal identity.
Many grandparents may be unaware of their rights as individuals, believing that the rights over a child belong to the parents. This is not necessarily the case.
So what can be done? Certainly, it has never been my practice to advise parties to make an application to a Family Court unless all other options have been explored (after all, having recourse to a Judge or Magistrates effectively means that you are placing major decisions about those dearest to you in the hands of a complete stranger, albeit a stranger with experience of dealing with similar cases). Routes such as writing to the caring parent to set out how the actions of that person may be affecting the child, or failing that mediation, often work, and should work if the parties are prepared to be flexible and put the child's interests first. However, in a small number of disputes the only way to attempt to regain contact with a grandchild is by way of an application to court, if the historic relationship with the grandchild is to have any prospect of being preserved.
The position of the grandparent in any contact application (or indeed application for a Residence Order) is not as certain as that of a parent, and unlike a Parent or Guardian, it will be necessary to take the preliminary step of asking the court's permission to make an Order in respect of the child. As a rough rule of thumb permission should be granted if there has been a sufficient physical connection with the child (the biological link itself is not enough), and the child's life will not be disrupted to such an extent that he/she would be harmed by the application.
If permission to make the application is granted by the court, the court then applies the welfare test as set out in s1 of The Children Act 1989, which includes a menu of factors including, as age appropriate, the wishes and feelings of the child.
Of course, each case will be dealt with on its own particular merits, but providing that the grandparent can justify their claim to contact on the basis of an actual relationship with their grandchild rather than on the basis of their 'status' as grandparent alone, then their prospects of securing a relationship with their grandchild via a court order are likely to be reasonable.
Paul Jackson is Head of Family at Marsden Rawsthorn, Chorley and is a member of the Law Society Children Panel. He frequently represents the interests of grandparents in both private law proceedings and also proceedings where a child is removed from the care of its parents by social services, where very often the wider family are the only viable alternative to the child remaining placed within his or her birth family. For further information and advice please call Paul on 01257 279511 or visit www.marsdenrawsthorn.com
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