Why I think grandparents’ legal rights are fit for purpose by guest blogger David Milburn
Tomorrow I will be appearing on the This Morning alongside Gloria Hunniford and another guest to discuss the difficult subject of access to grandchildren following the split of their parents. I was the legal contributor to Gloria’s book Glorious Grandparenting and I have posted on this subject on numerous occasions. In the book I do advocate the benefits of mediation in these circumstances. Unfortunately, and very sadly, not every sparring grandparent or ex grandparent-in-law can agree to settle their differences out of court, and so these disputes can sometimes involve litigation. The court has to decide only one point: what is best for the grandchild?
Current child legislation is entirely focussed on the child, as David Milburn my partner in our Hale Cheshire office explains in more detail below.
One of the criticisms I had of the recent Family Justice Review, led by David Norgrove, was the large number of children-focussed professionals on the review body. I believe more attention should be paid to all members of the family, and although I accept that the welfare of the child should always be paramount, the lack of statutory rights for family members in relation to their own family does concern me. Is it not high time to accord formal legal rights to members of the family, subject to the overriding provision of the welfare of the child concerned?
Within the Children Act 1989 grandparents are not named as a special category at all, and they fall under the general category at Section 10 (2) – “All other persons”- unless the child concerned has actually been living with them in circumstances defined by the Children Act. Grandparents will require leave of the court to make an application for contact before the contact application itself can be heard at all.
Unlike David Milburn, who sets out his reasons below, I believe this additional requirement for leave is likely to encourage and potentially antagonise family members who may be opposed to contact for purely selfish reasons, and devalues the valuable status of grandparents in the family.
Whatever the arguments for and against current law, by far the best and most practical way to resolve these kinds of dispute is for a grandparent to always remain steadfastly neutral before their child’s relationship ever breaks down. The grandparents must never allow blood to become thicker than water. Never make unkind comments about the child’s other parent, no matter how deserving those comments may seem. Grandparents do have to make huge sacrifices in these circumstances and also, should not be afraid to hold their own child to account if necessary. If grandparents are always perceived as neutral, and refrain from cutting remarks, then if and when a family breakdown occurs they have a far better chance of being involved in their grandchildren’s future.
I would be interested to hear your opinion so please feel free to leave your thoughts in the comments.
Should or should there not be automatic rights of contact for grandparents with their grandchildren? For some years now there has been healthy debate regarding whether they should be given the legal right to exercise contact.
To properly consider the question we first need to consider whether the existing system actually works. It should be noted that a grandparent is not treated the same in law as a parent. Therefore in order to make an application for contact, he or she first requires leave of the court to do so – i.e. permission.
When the court considers the issue of leave it must have regard to Section 10(9) of the Children Act 1989 which states that the court should look at:
(a) the nature of the proposed application for the section 8 order;
(b) the applicant’s connection with the child;
(c) any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by a local authority –
(i) the authority’s plans for the child’s future; and
(ii) the wishes and feelings of the child’s parents.
Therefore the court does have wide discretion when considering the issue of leave, bearing in mind the rights of the grandparents under the European Convention for the Protection of Human Rights and fundamental freedoms to a fair trial and to a family life.
There are many voices out there suggesting that it shouldn’t be necessary for a grandparent to seek leave. Often a grandparent has a strong relationship with their grandchildren and may have exercised regular contact with them – why then should they be forced to seek leave? They argue that the requirement only adds additional cost and delay.
Well it would seem that the answer to this question, as confirmed by the Family Justice Review report, is to prevent “hopeless or vexatious applications that are not in the best interests of the child”. The Review felt that the requirement to seek leave was “not overly burdensome and should remain” – I agree.
While representing a grandparent I have never had a case where I have not been successful in first obtaining leave, and then achieving contact between them and their grandchildren. I would add that in all of these cases the right outcome prevailed. Perhaps I have been fortunate to deal with cases where the merits of the case were strong. I am sure that there are many grandparents out there, who for one reason or another have been refused contact. Presumably that is because the court felt that overall it was in best interests of the child to deny them access.
I am a strong believer in the principle that the best interests of the child should be the paramount consideration, and must prevail over every other consideration – irrespective of the hurt done to parents and grandparents. I appreciate my opinion is not shared, even among the lawyers in this office. The Head of our Children’s Department, Stephen Hopwood, does not fully agree with me. While he accepts that overall the welfare of the child should always prevail, he believes that more should be done to enshrine the rights of parents and grandparents in law.
As Marilyn has stated above, she will be discussing these issues alongside Gloria Hunniford on This Morning tomorrow. I know that Marilyn has her own views on the subject, which she has shared on many occasions on this blog.
As I see it, the main problem actually facing grandparents and other litigants is the frustrating delays when making applications to the court. Cases tend to take too long to be determined and the procedure is open to abuse by unscrupulous parents who are determined to use their children as pawns in a family dispute.
As a parent myself I firmly believe that the relationship between a grandparent and grandchild is special and very important. It breaks my heart to imagine those children who lose contact with their grandparents. However, I believe that despite the problems with the court system it does still work in the vast majority of cases. I also think that the requirement to seek leave is still necessary to weed out those cases where contact really would not be in the best interests of the child.
David Milburn is a partner at Stowe Family Law’s Hale office. He deals with all work relating to the breakdown of relationships and the division of matrimonial assets. In particular he undertakes a number of cases involving mid to high-level assets.
An accredited member of the Law Society’s Family Law Panel and Resolution, David has represented footballers and other professional sportsmen. He places a strong emphasis on excellent client care.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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