The family team at Anthony Gold are pleased to be professional members of the Grandparents’ Association and appear in their “Lawyer List”. As such, we are happy to give grandparents a 20-minute free advice interview, either in person or on the telephone.

How can we help you?

Some would say 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% of grandparents lose contact with their grandchildren when their parents separate. However, 47% 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. It used to be the case that it was thought that a child was best brought up by his/her biological parents as opposed to grandparents or anyone else in the wider family. However, a recent decision of the Supreme Court (formerly the House of Lords) called Re B heard in 2009 has challenged this presumption.

In this case, the child, “Harry” (not his real name) had lived with his grandmother since he was born in December 2005 (Harry’s mother had also lived there but left Harry when he was about 6 months old). The grandmother obtained a residence order when Harry was 11 months old. The father had 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 on regular visits 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 magistrates’ court found that both the grandmother and the father could meet Harry’s needs but there was no compelling reason to disrupt continuity of care as the grandparents had been Harry’s “psychological parents” and Harry had never lived with his father. The father appealed successfully to a circuit judge. However, the grandmother appealed from that decision and won! The court said that the circuit 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. There was evidence that Harry was making good progress with his grandmother. If there was a move, “many of the familiar aspects of his life which anchor his stability and sense of security would be changed”.

Contact
Similarly, in contact cases the courts have been increasingly prepared to grant applications. However, applications will be refused even after leave has been granted. In one case called Re F [1995], the Court of Appeal granted an appeal by the guardian against an earlier refusal by the court to make a contact order with the paternal grandparents. The trial judge said the grandparents’ application had “overwhelming merit”. Contact was therefore awarded to the grandparents.

In another case – Re C [2010] – the grandparents’ application for contact was initially granted but the mother was able to appeal successfully against the order. This case was somewhat exceptional; the child was aged nine and had lived with his mother. The father had been found to be guilty of sexual misconduct towards the child. Previous supervised contact had resulted in the child becoming depressed and refusing to see his father and grandparents. The grandparents in that case said that if the case continued then they would apply for enforcement of contact and a change of residence. However, the mother’s appeal was successful. The supervised contact was to continue.

Leave to remove children from “the jurisdiction” (i.e. England and Wales).
In many cases, it is not unusual for one parent to apply to leave the jurisdiction following the breakdown of a marriage or relationship. Such applications are known as ‘leave to remove’. It is quite clear from recent decisions before the court that the impact of granting leave should be considered not only on the child but on the parent remaining behind and any grandparents. In one recent case – R v. R [2004] – one of the factors influencing the judge was that if the application was granted, the children would see much less of both sets of grandparents, both of whom lived in London. Accordingly, the mother’s application for leave to remove the child to Paris was refused.

In leave to remove cases, the grandparents’ position may require separate consideration; if, for example, the person leaving may be unlikely to promote contact with the “other grandparents” following relocation abroad. It can also be the case that grandparents will play an integral role in facilitating contact in international cases, e.g. by accompanying young children on international journeys.

An application by grandparents stands a much better chance of success where there is a genuine separate application, rather than something that is an afterthought or a tactical step.

Public law proceedings
We no longer act on behalf of parents involved in care proceedings. However we can recommend excellent firms to look after your interests in those cases.

Other Help and 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 on how we can help you email Margaret Hatwood or call 020 7940 4000.