What rights do grandparents have to see their grandchildren after a divorce?

What are my rights to see my grandchildren if their parents separate?

Grandparents do not have an automatic right to see their grandchildren when the primary caregiving parent is not permitting contact. Grandparents do, however, have the right to ask the court for permission to apply to have contact.

Such an application should be considered but only as a last resort if the grandchild’s parent or parents do not agree and discussions have broken down. Mediation is always recommended and is often a requirement before the court will accept applications.

How can I obtain the right to see my grandchildren?

The first and best option to consider when parents separate, and conflicts arise in respect of contact with the children, is to try to reach agreement with the parents by way of mediation. Mediation is the process of negotiating to achieve an amicable agreement, overseen by a neutral third party (a mediator). This could enable all concerned to reach an agreement without going down the court route.

The first step is a MIAM (Mediation Information & Assessment Meeting). This will allow a mediator to assess if mediation is a suitable approach.

According to the Family Mediation Council, mediation is successful in achieving a complete or partial agreement in over 70% of cases. Here are some reasons it might not be successful:

• If it transpires that mediation is not suitable
• Mediation does not take place for any reason
• Mediation starts but subsequently breaks down

In these scenarios, the mediator will provide a mediation certificate so that an application for a child arrangements order can be made.

Grandparent court order applications

Grandparents can make an application under the Children Act 1989 for contact. However, there is an additional step first as grandparents do not have an automatic right to apply to court.

In the first instance, permission is required from the court to make an application. Whilst there is no presumption that you will receive permission, permission is likely to be granted if you can satisfy the court that your application for contact has merit. This is likely if you have a blood relationship and an actual relationship with your grandchildren. It can be difficult to demonstrate an actual relationship if your grandchildren are very young or you have not seen them for some time, so it is important that you do not delay making your application. If you have a strong relationship with grandchildren and can evidence this, it is likely that the court will grant permission to make an application.

If permission is granted, the court will proceed to consider the application for contact. As with all applications relating to children, the court’s main consideration will be what is in the child’s best interests. Other considerations include:

• the relationship that the child has with their grandparent(s),
• whether it is in the child’s best interests for the contact to be maintained,
• and the effect of that contact upon the rest of the family.

If it is decided that contact is in the child’s best interests, the court will determine the appropriate level of contact.

Generally speaking, courts recognise the valuable contributions that grandparents make to children’s lives, but they must also take into consideration any adverse effect an application can have on children if there is hostility between the grandparents and the parent the children are living with.

The outcome of an application for a child arrangements Order can depend on the evidence presented to the court, so having experienced family lawyers to assist you can be hugely beneficial.

There are four other forms of court order that can apply in cases where the child’s living conditions are being challenged:

• Special guardianship orders are used to become the child’s primary caregiver if the child cannot live with their parents. If granted, this affords grandparents parental responsibility and grants the right to exercise this above others with parental responsibility.
• Child arrangements order – if a Child Arrangements Order states that the grandchildren live with their grandparent(s), this will also confer parental responsibility upon grandparents though only for the duration of the “live with order”.
• Kinship foster care orders are used to become a child’s official foster carer.
• Adoption orders are for officially adopting the child.

What if the court order to let me see my grandchildren is ignored?

If a parent blocks you from seeing your grandchild after a court has ordered them to allow you to see them, they would be in contempt of court and potentially viewed as breaching the rights of the child.

To proceed with this, you would return to court and explain how the court order has been breached. Legal representation throughout this process is highly advised.