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Family Law Blog

Comment on divorce & family law 

Challenges for grandparents who lose touch with their grandchildren

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Grandparents’ rights and special guardianship orders.

Grandparents usually have a positive influential role to play in the lives of their grandchildren, teaching them things their parents can’t from the generation before, helping children understand the dynamics of their family history, as well as the fun stuff of baking or playing with train sets.

Sadly, where there has been the tragic loss of a parent or following an acrimonious divorce or relationship breakdown, grandparents may be pushed out, losing contact with their grandchildren, sometimes quite to the detriment of the child.

So, what options are open to a grandparent in this situation?

Mediate to find a solution

Family mediation could have an important role to play here as a means of attempting to resolve disputes between grandparents and parents. It provides a space where the families can communicate albeit via a third party. However, unless the parent(s) will engage in mediation, or the process of mediation breaks down without agreement grandparents are faced with the daunting prospect of having to seek the permission of the court even to apply to see their grandchildren.

Apply for permission from the courts

As unbelievable as it may seem grandparents have no automatic right to ask the Courts to help them, save for some exceptional circumstances, and so must apply for permission to make their application. Of course, before making their application they must decide what exactly they are applying for. Is it a Child Arrangements Order to have defined times when they see their grandchildren?  Or is it that the child should live with them given the change of circumstances, in which case should the application be for residence or a special guardianship order?  In my experience the difference isn’t always understood when I speak with grandparents wanting to go to Court.

Obtain a court order

A residence order would make the successful applicant the main carer for the child and give them Parental Responsibility shared with any parent who already has parental responsibility.  It would likely also set out when the child should spend time with their parents or other carers involved.

A Special Guardianship Order can secure the child’s long-term placement and give the Special Guardian Parental Responsibility as well as setting out arrangements to maintain the child’s links with his or her parent(s) but it also gives additional “powers” to the Special Guardian. It can for example give them control on a day to day basis of how the parents’ exercise parental responsibility

An application for a Special Guardianship Order must be supported by social services who will be asked to undertake a report during proceedings on the suitability of the applicant(s) and any other relevant matters.

It’s not easy for grandparents

The situation of grandparents is not enviable there is no longer Legal Aid to cover the legal costs in most cases and social services will only sometimes propose to assist with costs where they are encouraging the grandparents to bring proceedings rather than the child having to be placed in care. The additional hurdle faced by grandparents – that they have to ask the Court for permission before they can make an application for a Court Order - creates a perceived barrier and indisputably increases the time and cost of proceedings. 

But, I have worked with a number of grandparents, helping them to re-establish contact with their grandchildren, and they tell me it’s all worth it in the end.

Kimberley Bailey
Family law solicitor Bristol

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