Withholding Grandchildren from Grandparents: Everything You’d Need To Know

The law does not give grandparents any automatic rights to see their grandchildren. So, in almost every case, parents can keep children away from grandparents if they choose to.

This doesn’t mean grandparents have no other options. Those options usually involve repairing the relationship with their adult child as this is often the reason for parents preventing their children from spending time with the children’s grandparents.

In situations where this proves difficult, a professional social worker or mediator can help find a resolution. However, resolving problems between all the adults involved (the children’s parents and grandparents) is usually the only solution.

What about exceptions to the above? Exceptions are rare and usually involve situations where the parents of the children are putting them at risk. Examples include addiction, abuse, or neglect.

Parents might try to prevent their children from seeing grandparents because the grandparents are trying to intervene. In circumstances like these, getting professional legal advice on the steps you should take is essential.

In May 2019 the European Court of Justice ruled that grandparents have a legal right to see their grandchildren.  The right of access refers also to other persons with whom it is important for a child to maintain a relationship.  Although we are leaving the EU, it is vital that those issues are now incorporated firmly into British law.  Under the Children Act 1989, as amended, if you are a parent whose name is on the birth certificate, you automatically have parental responsibility and an automatic right to apply to the Court for any issues relating to the children, for example when you see them. Where they are to live etc.  By stark contrast as a grandparent you have no automatic right whatsoever.  This means that if you cannot reach agreement with your children and their partners, your only remedy is to apply to the Court and in doing so as a grandparent, you not only have to get over one hurdle but two.

Under the Children Act you have to apply to the Court first for leave before you can even go as far as applying for what is known as a Child Arrangement Order, ie right to see your grandchildren.  Grandparents who have taken this addition step know that the briefing paper in 2006 given by the House of Commons, says that the intention behind forcing grandparents to apply for leave is to act as a filter to sift out those applications they say that are not in the child’s best interests.  The law also confirms that the granting of leave does not automatically presume that an application for a Child Arrangement Order will be successful.

In 2010 the Labour Government said in their family justice review that they wanted to examine the issue of leave for grandparents.  This was finally reported on in November 2011 when they concluded that there was no need for the provision for leave to be eradicated.    It said by way of justification “this prevents hopeless or vexatious applications that are not in the interests of the child”.  This has been the position ever since.

Following a campaign that this firm has been a party, it changed the law in relation to grandparents and their rights in respect of their grandchildren, the Justice Secretary looked again at this issue and again concluded that there was no need to remove the provision for leave by grandparents.  It is a view of this firm and many practitioners that the decision to force grandparents to apply for leave was a political one and based on lack of funds.  At that time legal aid or legal funding was available, but even so there are not enough judges or courts, or judicial time and as a consequence puts grandparents off from applying in the first instance because there is simply not enough judicial time available.

There are some exceptions to grandparents having to apply for leave which are found in Section 10(5) of the Children Act 1989.  In all of the cases there is a presumption where leave is not required that there is going to be some kind of agreement between the parties.

The criteria that the court take into account when considering grandparents applications for leave is that the Court should have regard to the nature of the proposed application for what is known as a Section 8 Child Arrangement Order, the applicant’s connection with the child, or any risk that there might be that the proposed application will destroy a child’s life to such an extend that he or she would be harmed by it.    Accordingly, when looking at whether to grant leave, the welfare of the grandchild is not the paramount consideration.  If leave is granted, then a child arrangement order can be applied for and it is at that stage of the court’s paramount consideration.

If you are a grandparent, and you are uncertain about how to proceed, then this firm can give you very full advice on how to move forward in relation to your case Contact us Here

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