I am stuck in the middle and miss my grandchild… do I have rights to visit my grandchild?
It is very heart-breaking to hear from grandparents who have been prevented to see or spend time with their grandchildren when their children divorce or separate. Although one appreciates the benefit, value and importance that grandparents should have or continue to have for a fulfilling bond with their grandchildren when their own children’s relationship breaks down, it is the best interests and rights of the grandchildren to have a loving and gratifying relationship with their grandparents which the law is more concerned with. If the parents are unable or unwilling to facilitate any child contact in these testing times and circumstances, the grandparents can and should agree their own arrangements to see their grandchildren. However the first step is to try and make contact with the parents to see if matters can be resolved informally and amicably.
Are Grandparents’ Rights automatic?
Grandparents do not have an automatic right to their grandchildren. However, family courts recognise how vital a grandparent’s role can be in their grandchildren lives; as long as there is no history of abuse, violence, or neglect, the court will grant you permission. Rarely will a court completely refuse granting “access/contact” unless there is evidence of a risk of harm to the child(ren). Case law has determined that the risk of disruption that should be contemplated is the risk of disruption to the extent that the child would be harmed by it.
You have the right to see your grandchildren and rights to seek leave from the family courts if the parents cannot agree or are unwilling to allow contact to take place. If granted permission to make an application, you will be able to apply to court under the Children Act 1989 proceedings for the court to consider your case and establish the relevant Grandparents’ Rights.
The court is more likely make an order in your favour if you can demonstrate you have a strong relationship with your grandchildren and you can prove details of that relationship, the role you have played in their lives up until you stopped seeing each other. If contact has been infrequent, the court will be less likely to make an immediate order, although a stepped arrangement may be put in place to integrate you into their lives.
Mediate first
If parties cannot come to an agreement or compromise, family mediation should be considered before taking matters to court. Upon contacting a family mediator, a Mediation Information & Assessment Meeting (MIAM) will be scheduled – the mediation process and different types of mediation will be explained. If mediation is suitable, the mediator will invite the parent(s) to a mediation/MIAM session; online, via video or in person. If mediation is not suitable or progressing, the mediator will provide a mediation certificate so you can apply to court for a Child Arrangements Order (CAO).
In the interim, it is prudent to maintain indirect contact as much as possible – via text, telephone or video, or even write a letter or email to remind or tell your grandchildren that you miss and still care about them. Letters should be neutral and focused on the child, not on the conflict. When you correspond, it is important to take copies of your letters, emails or phone log, as it may be used as evidence for any court case that later ensues. The key is to do it regularly even if you do not get a reply and provide a stamped addressed envelope for them to reply to you.
CAFCASS
If all else fails and mediation does not help nor progress, you will have no option but to resolve matters at court. Once an application has been made, the court will consider whether you can be in contact with your grandchildren and if so, what kind of contact would be most beneficial for them – direct or indirect. A Children and Family Court Advisory and Support Service (CAFCASS) Welfare Officer will be appointed to speak to all parties involved. This may happen at the first hearing or Directions hearing. A safeguarding letter from CAFCASS might be ready to assist the court at the first hearing, but not a report. The officer will investigate all the issues that concern the welfare of the children (if there are any safeguarding issues) and send a report to the court with their recommendations to assist the court in the decision-making process. Parties will get a copy of the CAFCASS report and if recommendations are for contact to take place, you may ask the parents to let you see your grandchildren. If the parent(s) still do not agree, attendance for a final or contested hearing at court is the next step.
Court proceedings
The court will set a date for an initial hearing to determine if leave should be granted. The court will decide if your application is successful by hearing any submissions on behalf of the parties. If it is, the court will usually direct the parties to file with the court and serve on each other the witness statements that parties wish to rely upon. The court may also ask an officer from Cafcass to prepare a report and give their recommendations to the court.
The court may then list the case for a dispute resolution hearing to see if an agreement can be reached. If no agreement can be achieved, the case would be listed for a final hearing; each party, and if necessary the Cafcass Officer, will give oral evidence to the court and a final decision will be made.
At court, you (the Applicant) and the parents of the children (Respondent), will provide evidence. You must emphasise the integral part you have played in your grandchildren’s lives, not just about your own needs but how they will be negatively impacted by not having you around.
CAFCASS’s report and recommendations are highly persuasive and if it is in the best interest of the children, the court will issue an order for contact to resume and outline what kind of contact you will be having from here on.
Parental Responsibility
What does it mean – my “son does not have rights…he does not have parental responsibility”?
Your son only has parental responsibility if he and his partner were married at the time your grandchildren were born, or if his name is on the birth certificate. Your son can apply to the court for parental responsibility at any point, which would not be reasonably denied unless it was proven he poses a risk to the child’s safety or welfare.
What happens if the parents ignore the court order?
In this very unfortunate event, you are able to bring the case back to court and explain that the order has been breached. The family court has the powers to enforce the order (enforcement order) and punish the individual(s) who have disregarded the order or are in contempt of court directions.