Over the last few years there has been a growing area of work for many family law practitioners. That is dealing with disputes involving grandparents who wish to maintain a relationship with their grandchildren after their children have gone through a divorce or relationship breakdown.
There was a family justice review undertaken in 2010, which was fully reported upon in November 2011 to look at the issue of grandparent contact. That report stated that the law in relation to grandparents was effectively that there were sufficient legal remedies for grandparents for there to be any change. The basic principles put forward by that review was that contact for grandparents to their grandchildren is often agreed globally with the parents or carers of the children concerned and therefore there is not such a problem to warrant a change in law. They went on to say that where this could not be agreed, grandparents could always apply to the Court for what is known as a “child arrangement order” and the requirement for them to apply for one extra hurdle of leave to do so, was not too problematic. It is here that both this firm and other practitioners must take huge issue. The purpose of this article to set out fully the difficulties that have been experienced by millions of grandparents countrywide and to be a mouth piece for some of those very sad stories.
To put matters into perspective, child arrangement orders were introduced by the Children and Families Act 2014 which sought to replace the wording “contact and residence orders”. Child arrangement orders decide where a child will live and who will have rights to see them. The court in considering these matters will take into account the welfare of the child.
Regrettably and historically, the process for applications by grandparents and other third parties differs entirely from the process undertaken by parents. Parents automatically have parental responsibility if their names appear on the birth certificate. Grandparents who make applications for child arrangement orders do not. As a result, grandparents have to take the additional step of seeking leave of the Court first before they can apply for a child arrangement order.
According to a briefing paper given to the House of Commons dated 28 April 2016 under reference 07574, the intention behind requiring grandparents to apply for leave, is to act as a filter to sift out those applications that are clearly not in the grandchild’s best interest. Granting of leave does not automatically presume that the application for a child arrangement order will be successful.
In 2010 the Labour Government produced a green paper indicating that they wished to remove the requirement of grandparents’ necessity to seek the leave Court. The Family Justice Review was constituted in March 2010 and was supported in the first instance by the Coalition Government. The review was finally reported on in November 2011 and concluded to the chagrin of both the Labour Government, Coalition and many practitioners, that the need for grandparents to apply for leave should remain. It stated “this prevents hopeless of vexatious applications that are not in the interests of the child”. The Government accepted the recommendation and this has remained the position every since.
More recently the current Justice Minister following a discussion in Parliament whilst supporting the contention that more needs to be done to promote relationships between grandchildren and grandparents, gave a very clear indication that she did not believe that there was any evidence that the review of 2011 should be overturned.
There are still many of us practitioners who feel that given the huge number of grandparents who care for or are involved in the care of their grandchildren and for a number of reasons whose relationship can suddenly be severed, should not have to go through this two-pronged exercise in order to see their grandchildren.
Many have asked why the review came to the conclusion that it did and there have been many different reasons that have been provided. The official one is that there were too many grandparents applying without justification for contact and in circumstances where they had rarely seen their grandchildren and that the cases had no merit at all. Whilst on investigation that might have been true for some cases, it certainly is not so in the majority of cases and therefore investigations have been made by many to look behind the intention at the time.
There are many practitioners who sincerely believe that the decision for keeping the requirement for leave, is a political one and based upon lack of funds. Put simply, there are just not enough Judges or judicial time or courts available to hear the number of cases that currently come before the Court to deal with applications for child arrangement orders if grandparents had an automatic right to apply. The difficulty with these cases is that whilst the Government and any predecessor Governments have looked at this issue and dismissed it, the fact now is that there are too many grandparents who currently have been severed from all contact from their grandchildren.
Whilst it is the case that some families, where there is relationship breakdown, can easily divide time between the wider family or continue to enlist the help of grandparents to look after the grandchildren (whilst the ex-daughter-in-law or ex-son-in-law works), there are many cases that demonstrate that there are emotional reasons that come into play which often sever such relationships when there is a divorce or relationship breakdown. There is substantive evidence that one or other of the parents may for their own motivations and certainly not out of desire to protect the welfare of their children, unilaterally refuse to allow the grandparents any further contact. By the time that informal negotiations reach an end, there is often a huge gap in the time that the grandparents have last seen their grandchildren. By forcing grandparents to apply for leave first, and thereafter a full-blown application for a child arrangement order, time restrictions impact on these cases.
Accordingly, if a Judge has to determine whether it is in the best interests of a grandchild, to see the grandparent, it might have been more than a year since they last saw each other. Because of the way in which the system works, many judges have stated that the grandparents should be denied any further contact because such a large amount of time has elapsed. There is a certain naivety in the presumption that everyone is going to agree things readily and easily and has facilitated against many grandparents.
When the Court is looking at whether or not to grant leave to a grandparent, the welfare of the child is not of paramount consideration. If leave is granted then a child arrangement order can be applied for and at that stage the child’s welfare shall be the Court’s paramount consideration.
The report in 2011 whilst recognising the importance to children of a relationship with their grandparents, still felt that an application for leave was not an overly burdensome procedure and should remain. They naively stated that grandparents did not have a right to contact and stated that their research indicated that grandparents were unlikely to lose contact with a grandchild if they had a meaningful contact whilst the parental relationship was still in being. This is certainly not the experience of the two million grandparents currently unable to see their grandchildren.
There are some exceptions to grandparents having to apply for leave. These can be found under Section 10(5) of the Children’s Act 1989:
- Any person with whom the child has lived for a period of at least three years – Section 10(10) of the Children Act 1989 states this period need not be continuous must not have begun more than five years before or ended more than three months before the making of the application.
- Any person who has the consent of each of the persons named in the child arrangement order enforce relating to with whom the child is to live or when the child is to live with any person
- or who has consent of each person in whose favour the order the was made in any case where there was an existing order for care in force
- or has the consent of a local authority in any case where he child is in the care of that local authority
- or who has parental responsibility for the child by virtue of provision under Section 12(2)(a)
- or in any other case has the consent of each of those if any who have parental responsibility for the child.
- When a Court considers an application for leave to apply for a child arrangement order, the test which applies is that the Court should have particular regard to the nature of the proposed application for the Section 8 Order, the Applicants connection with the child or any risk that there might be of that proposed application disrupting a child’s life to such an extent that he would be harmed by it
- Where the child is being look after by a local authority:
- What are the authorities plans for the child’s future; and
- The wishes and feelings of the child’s parents.
The Government’s position appears to have repeatedly been that when parents are applying for child arrangement orders in their divorce or relationship breakdown, that grandparents can hook into their applications and deal with contact at the same time. This does not cover the more regular position where one or other set of grandparents is cut out of the equation and cannot be considered in an application by the parents themselves.
When grandparents apply for leave, the court will always consider the child’s circumstances and will make an order where they consider whether it is better for the child than making no order at all. The court has to weigh up whether a continuing relationship with the grandparent will have a negative impact on the rest of family relationships.
There is no doubt that there has been huge change in family form and social structure over the last 20 to 30 years. Marriage rates have slowly declined and cohabitation is increasing. Cohabiting relationships are three times more likely to breakdown than marriages. The divorce rates are showing that at least 2 in 3 married couples are divorcing and this is slowly moving to 1 out of 2 over the next year.
Given those statistics it is very important that grandparents have a role to play. From research that has been carried out between 2001 and 2009, one in four families received some kind of childcare support from grandparents and almost all families received some kind of financial support from them. Given that more women are working than ever before, grandparents are more readily being relied upon and appear to be the preferred choice of care above au pairs, mother’s helps, nannies etc, as well as being more financially viable in 2018.
It is also clear that in care cases, that grandparents would be an excellent choice to take over the care of the children where parents cannot, but they are not sufficiently involved. Research also shows that grandparents in the care system are being involved far too late to be part of the choice made by the local authority. All of these issues have left thousands of grandparents feeling that they have been left in the dark and have been totally undermined and unappreciated for what they can do for their grandchildren.
Far from interfering, hundreds of grandparents that we have spoken to, far from making derogatory remarks, have emphasized that their role is to be supportive, to be silent in making any comments about the way their children are parenting but are there to be an ear for the grandchildren at a time when they are going through turmoil and disruption. Many have expressed to us that when children are having to leave their homes, their school and everything is unfamiliar to them, that they are their stability to provide a comforting and a sold relationship when all else about them is changing.
Mediation is a system where the parties can mediate their difficulties if they cannot agree amongst themselves. Again, upon investigation mediation has been failing right across the family law system. Parties feel that the imposition of mediation is unhelpful and the mistrust that has been built up because of the delays, the inability of most grandparents to understand how mediation works or who they can trust to act as a mediator, has led to very few taking up this choice. Some have described mediation as being too structured to provide a good outcome.
It is for this reason that last year my firm set up a new entity known as a “successful outcomes procedure” whereby grandparents and their children can sign up to six sessions in an informal structure, whereby we bring the parties together to achieve a shift in position. The parties are able to state their views in a non-confrontational manner with a structure that does not allow those views to be misinterpreted in an exceedingly sensitive scenario.
In our system we make it clear that each side must allow the other to speak and express their views without insults, name throwing, or aggression in a safe environment with the grandchildren’s interests at the heart of all discussions. Sometimes we will refer the parties for specific therapy not limited to parenting plans only but those that will take into account the grandparents too. Sometimes the entire family must go into appropriate therapy to learn how to properly communicate so that the grandchildren can benefit from their relationship together.
Having conducted research around the world in various jurisdictions such as the USA, Spain and Australia that do allow an automatic right to grandparents to apply to the Court, there does not appear to be a difficulty.
One of the issues facing judges when dealing with grandparents’ applications is how to divide the time adequately and sensibly between two parents who have split up, whilst at the same time allocating time for the grandparents to have their own time with the grandchildren. The way in which the courts in the United States deal with this matter, is on a case by case basis, looking at the circumstances of each case, what time is available and what benefit the grandparents can bring to that equation. In the State of California and Florida, they have managed repeatedly to divide the time and have not ever felt the need to impose the requirement of grandparents applying for leave beforehand. They have indicated that the first preliminary hearing can easily filter out inappropriate applications so that there is no loss of momentum to the grandparents concerned. This is equally so in all other countries that do not require leave.
In any case where an application has been made for a child arrangement order there is a requirement for a Mediation Information and Assessment Meeting (MIAMs). In the case of grandparents this inexorably adds to the delay in coming to court. In recent reports the Government has suggested that children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it. However, grandparents very rarely seek to involve the views of the grandchildren in an early stage because they are only too aware that they want to protect the interests of their grandchildren and not cause further problems. The eradication of Legal Aid for these cases means that many grandparents are not in a position to afford to apply to the Court and are not aware of other forms of dispute resolution that might be available to them.
There is also a lack of discernible judicial continuity in grandparents’ cases. This has meant that many different judges have expressed different views in relation to the grandparent cases which gives them a feeling of helplessness and leave many to abandon the entire application before any conclusion is reached. This also seems to fly in the face of the general proposition in family cases that judicial continuity is desirable, if not essential.
Whilst there appears to be parenting programmes for the parents to learn how to improve their parenting, it is vital that more is done to include the grandparents so that any difficulties can be ironed out and such plans should not simply be the province of the parents alone.
Further, upon investigation there are many disputes that seem to involve the status of monies that have been provided by grandparents in their children’s divorce or relationship breakdown. It is essential now that far more publicity must be given to the fact that grandparents should themselves give absolute clarity to their intentions when giving money to their children, to avoid future problems.
Is the money intended to be a gift or a loan and if so, what are the terms for repayment?
So often the status of monies provided by grandparents can draw them into a dispute as a party to the children’s proceedings and this in turn can cause horrendous rifts within the family, and the consequences being that the grandparents are then prevented from seeing their grandparents as a punishment for being involved in proceedings. Grandparents are the innocent parties and have been drawn in without understanding the implications of the kindness that they have shown financially. If grandparents are aware that their continuing gifts could be considered to be a resource available in financial proceedings, then perhaps they could class them in a different way so that they will not be criticised in the future.
Further, in providing monies that are utilised to buy a home, if it is intended to be a loan, then a loan agreement should be drawn at an early stage so that this is clear and unequivocal. So often in the midst of a matrimonial case, one or other of the parties will claim that the money was intended to be a loan, where it has always been expressed so far as the other party is concerned as a gift. It is easy to see how these kinds of representations can impact on the grandparents in a way that has never been intended.
This firm has been very much involved in lobbying Parliament through the issue of a change in the law where grandparents are concerned. In relation to the issue of having an ongoing relationship with their grandchildren, this firm strongly believes that there should be a change in the law. In order to assist in understanding where those changes can easily be made, we have drafted an amendment to the Children’s Act which we hope will be considered carefully by Parliament and which we have named “The Grandchild and Grandparent Relationship Act”.
This is an Act, by way of amendment, to promote the grandchildren’s continuing involvement with their grandparents and to amend the provisions of the Children Act in so far as it relates to applications for child arrangement orders. The simple amendments relate to a substitution in paragraph 2(a) by inserting a 2(aa)(i) state and we set out below the entirety of the amendments sought namely: –
“A court when considering an application under Section 8 by a grandparent is to presume unless the contrary is shown that involvement of that grandparent in the life of the child concerned will further the child’s welfare.
2(aa)(ii) A court when considering an application under Section 8 by a grandparent shall give sufficient weight to the child’s right to have a continuing relationship with their grandparent when applying under Section 1(1) above in order to embody the intention of Articles 3 and 6 of the United Nations Conventions on the rights of a child”.
3 after subsection (6) insert
“(6A) In subsection (2AA) “grandparent” means grandparent of the child concerned; and for the purposes of that subsection, a grandparent of the child concerned –
- Is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
- Is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that grandparent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement”.
- Power of the Court to make section 8 orders
- Section 10(4) of the Children Act 1989 (Poser of the Court to make section 8 orders) is amended as follows:
- After subsection 4(b) insert
“(c) any grandparent of the child who is not already entitled by virtue of section 10(5) or 10(5B) to apply for any section 8 order”.
We hope that the Government will look again at the necessity of eradicating the need to cause grandparents to apply for leave for all the reasons that we have set out above. We believe that by making these amendments as set out above, that this will bring us in line with the majority of other countries worldwide to ensure that grandchildren continue to have a meaningful relationship with their grandparents.
As set out in our amendments, the intention of articles 3 and 6 of the United Nations Conventions on the rights of a child insist that there should be a continuing relationship between grandchildren and their grandparents.
The United Kingdom appears not to be following through that intention by the current state of the law and leaves grandparents isolated in the need to require leave, with the naïve approach of successive governments, that grandparents do not need to be assisted by the legal system. It is our considered view and that of many practitioners that something radical has to change to deal with the silent heartache of so many grandparents who feel that they are left without remedy and desperate to re-establish their relationship with their grandchildren, for the benefit of the grandchildren themselves.
Research has clearly shown worldwide that grandparents provision of historical information in relation to the family, as well as care and financial support that grandparents can bring to their grandchildren is vital to society. For so many to be severed off from providing this help at a time when so many grandchildren appear to be going through mental health difficulties, distress and rupturing of their families, seems almost bordering on the inhuman.