Margaret Hatwood, Partner
Grandparent Times - Spring 2011
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Grandparents have been the poor relations of the family justice system. However, a review of the family justice system is underway to consider how best the system can provide greater contact rights for grandparents. The report by the Ministry of Justice is due later this year.
In June 2010 Nick Clegg, the deputy prime minister, said when he announced a new Childhood and Families Task Force:
“We are looking hard to provide greater access rights to non-resident parents and grandparents… We all know the role grandparents can play in helping children through these difficult times but often grandparents don’t feel empowered to step in. That’s crazy and it needs to change.”
At present, 42 per cent of grandparents lose contact with their grandchildren when their parents separate. However, 47 per cent of single parent families rely on grandparents to help with care. Despite this, grandparents do not have any special status in court proceedings concerning children under the Children Act 1989 which governs issues like contact and residence issues, (i.e. what used to be called ‘access’ and ‘custody’).
Residence
Whereas a parent can apply for contact and/or residence without the permission of the court, in most cases grandparents require ‘leave’ – i.e. the permission of the court – except in cases where they already have a residence order in their favour or where the child has lived with them for three years or if they have the consent of all of those with parental responsibility.
An application for leave
In deciding whether permission should be granted, the courts consider the following factors:
- The nature of the application
- The applicant’s connection with the child
- Any risk that the proposed application might disrupt the child’s life
- A broad assessment of the case.
Even if leave is granted – and it is sometimes granted without a court hearing – this does not mean that the actual application for residence (or contact) will be granted. Whether it is granted will depend on what the court believes are the best interests of the child determined in accordance with the criteria in Section 1 Children Act. However, in recent years the courts have shown an increasing tendency to grant residence and contact orders in favour of grandparents.
In a landmark and very recent case called Re W heard by the Court of Appeal in late 2010, the Court of Appeal agreed with a county court judge and supported her decision to grant a residence order to a paternal grandmother (‘G’) where the child’s mother was hostile to the child (‘C’) having contact with her father. The mother (‘M’) appealed this order.
This was an unusual case. Court proceedings had commenced in 2007 when C’s father (‘F’) had applied for contact. For the next three years, M breached contact orders, failed to attend hearings and made untrue allegations against F. By the time of the final hearing in October 2010, the mother had failed to bring C for contact on 28 out of 34 occasions. It was clear that the county court judge hearing the case had given the case very careful consideration. M had defied contact orders at every opportunity, she was even committed to prison for seven days. She also failed to undertake unpaid work which she had been ordered to perform and did not attend some earlier hearings. The judge heard from M, F and G. The judge had been impressed by G. F was not in a position to care for C and had not himself made an application for residence. The Court of Appeal said that the county court judge did not move C to the grandmother as an act of frustration or irritation at the mother’s conduct. It had been a classic balancing exercise between on the one side, the harm to C from the disruption of separation from her mother, and on the other the emotional harm if she were to remain in her mother’s care caused by the mother’s unremitting hostility to F.
It was clear the county court judge had moved C as she took the view that C’s welfare in the longer term required such a move. The Court of Appeal felt that the assessment the trial judge had made was a proper exercise of the judge’s discretion indeed there was ample material upon which the trial judge could say C was likely to suffer significant harm in the future if she remained with M.
The courts used to say a child was best brought up by his/her biological parents as opposed to grandparents. However, a recent decision of the highest court in this country i.e. the Supreme Court case called Re B heard in 2009, has challenged this view.
In this case, the child, “Harry” (not his real name) had lived with his maternal grandmother since he was born. Harry’s mother had also lived there but left Harry with her mother when Harry was about 6 months old. The grandmother obtained a residence order when Harry was 11 months old. The father had regular overnight contact with Harry until the father was sentenced to a term of imprisonment. The grandmother ensured that Harry maintained a relationship with his father by taking him to see his father in prison. Contact resumed in March 2009. Just two months later, Harry’s mother applied for a residence order. Harry’s father applied for a residence order. The mother then decided to support the father’s application. The family proceedings court found that both the grandmother and the father could meet Harry’s needs but there was no compelling reason to disrupt Harry’s care as the grandparents had been Harry’s “psychological parents” and Harry had never lived with his father. The father appealed successfully to a county court judge. However, the grandmother appealed from that decision and won! The Supreme Court said that the judge had overlooked the disruption that a change of residence would involve, especially as it involved a move of 30 miles or so and would involve a change of nursery.
Contact
Similarly, in contact cases the courts have been increasingly prepared to grant contact applications in appropriate cases.
Other helpful advice
Anthony Gold are a full service law firm; therefore we have expertise in the areas of making wills, administration of estates, Court of Protection work, powers of attorney, inheritance disputes and many other areas.
For further information email Margaret Hatwood or call 020 7940 4000.
