Will reforms make a difference for grandparents seeking contact?

As you will no doubt have seen in the national media, MPs are calling for changes to the law to help grandparents maintain contact with their grandchildren. The story actually relates to a debate in the House of Commons last week, moved by Nigel Huddleston MP. He began the debate thus:

“I beg to move, … “That this House has considered grandchildren’s access right to their grandparents.”

Not a great start, containing two glaring errors in just that second sentence. Firstly, we have not used the terminology ‘access’ for the best part of thirty years, since it was replaced by the term ‘contact’, and secondly it is of course incorrect to talk of ‘rights’ for grandparents, or indeed parents. It is not about the ‘rights’ of the adult, but about the welfare of the child.

OK, leaving those points to one side, what exactly is Mr Huddleston and his supporters seeking on behalf of grandparents? Well, he uses the rather misleading phrase “automatic rights to see their grandchildren”. This suggests that grandparents should have such a ‘right’ without needing to obtain a court order, and that the ‘right’ would be enforceable, perhaps with the assistance of the police. In fact, I don’t think he means any such thing. What I think he means by ‘automatic rights’ is doing away with the need for grandparents to apply for the leave, or permission, of the court before they can proceed with their application for a child arrangements (i.e. contact) order.

I have no problem with the issue of leave being reconsidered, as suggested in the debate by Gloria De Piero MP, but as Lucy Frazer, the Parliamentary Under-Secretary of State for Justice said: “grandparents do not usually experience any difficulty in obtaining permission when their application is motivated by a genuine concern for the interests of the child.” She also pointed out that the Family Justice Review recommended that the requirement for grandparents to apply for leave should remain as it is because it “prevents hopeless or vexatious applications that are not in the interests of the child.”

Unfortunately, there is further confusion with regard to Mr Huddleston’s other suggested reform. Iain Stewart MP, for example, said this:

“There are legal ways of getting access but they are too cumbersome and the barriers are too big. Many of the grandparents I have met do not want to go down that road, either because they cannot afford it or because they just do not want the anguish. It is a barrier that should not be there—there is a problem to address immediately.”

And Dr Matthew Offord MP said:

“Many grandparents are of an age that means that time is of the essence. They are not able to go down a legal route; many people would find that difficult not only financially but emotionally.”

The clear suggestion here is that grandparents should not have to go to the trouble and expense of court proceedings, and should somehow secure their ‘right’ of contact with their grandchildren by some other route. But they must, of course, go through courts, unless the matter can be agreed, either directly with the parent(s), or through mediation. In a contested case you can’t provide grandparents with a method of obtaining contact that does not involve the courts. To be fair to Mr Huddleston, he did admit that: “Some kind of court action is probably required, but we can make it a hell of a lot easier.”

What Mr Huddleston is actually proposing is that the ‘shared parenting presumption’ in section 1(2A) of the Children Act 1989 be extended to include grandparents, or extended family members. In other words, the court should presume, unless the contrary is shown, that involvement of those people in the life of the child concerned will further the child’s welfare. To be honest, I can’t see such a presumption making much difference to the outcomes decided by the courts, just as the shared parenting presumption made little difference to outcomes. The courts are already fully aware that contact with grandparents is usually a good thing for the child, and this is absolutely clear from precedents, i.e. previous decisions that are binding upon the courts. But it is possible that such a presumption may change the culture, as Mr Huddleston said, thereby making it more likely that matters will be agreed.

In short, I’m not sure that either of these proposed reforms will do much to help grandparents. They will not stop many grandparents having to apply to the court, and they will do little to reduce the time that it takes to obtain and enforce an order, a particular complaint raised in the debate.

There is one other important point. One may wonder why the issue of grandparents’ ‘rights’ is being raised now. That may well be to do with the increase in court applications by grandparents. As Mr Huddleston explained, there has been a significant rise in such applications since 2014. Could this possibly be to do with the lack of legal aid, which was abolished in 2013? We all know that having lawyers increases the possibility of matters being resolved by agreement. Gloria De Piero MP also made the point about lack of legal aid for grandparents. Could restoring legal aid actually be the best way to help them?

You can read the full House of Commons debate here.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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6 comments

Andrew - May 8, 2018 at 4:43pm

This may not be a popular point of view around here; but I don’t see mush scope for this. If the PWC wants to move away, or fills up the child’s time with worthwhile activities, or just does not want the grandparents around – that’s her, usually her, call. Not like fathers.

Paul Apreda - May 8, 2018 at 6:01pm

A superb defence of the merits of the legal profession being paid for at tax payer’s expense – as we’ve come to expect from John.
His genius is shown wonderfully when he declares ‘To be honest, I can’t see such a presumption (of involvement) making much difference to the outcomes decided by the courts, just as the shared parenting presumption made little difference to outcomes.’ Absolutely right – because Courts are by and large simply out of touch with public opinion on these issues. It is precisely for this reason that the lawyers need to be factored out of the equation as far as possible. Of course there will be cases where Court action is required – but they need to be the extreme ones – and probably where the threshold for Public Law intervention is triggered (wherever that ‘threshold’ might be……………)
Another Tour de Force from John comes in the closing paragraph – ‘We all know that having lawyers increases the possibility of matters being resolved by agreement.’ How exactly do we KNOW that? I’m sure that after a lifetime in the legal profession John is acquainted with the concept of evidence. Perhaps he’d like to share that evidence with us? Naturally all the family lawyers I now are renaissance men and women of noble character and selfless dedication who move their poor misguided clients towards a speedy resolution with the minimum of hassle and cost – thereby taking the bread from the mouths of their own children! However there are apparently some lawyers who keep the arguments going – lengthening the dispute and Court process for some strange and inexplicable reason which I’m absolutely assured has nothing to do with the way that lawyers are remunerated on a time based framework. It’s also a wonderfully inconvenient fact consistently brought up in the MoJ quarterly statistics that cases involving lawyers take the longest to conclude in Private Law.
No John Bolch piece could of course do without the obligatory push to bring back Legal Aid – that universal panacea that enabled lawyers to magnificently resolve cases. Who can forget those halcyon days pre April 2013 when the glorious Private Law system worked its magic and everyone went away happy with the SERVICE (clue in the title HMCT S)
Fear not gentle reader – for the Ministry of Justice is looking anew at the catastrophy of Legal Aid and will be bringing forward proposals! However I particularly liked the part when the senior official we met said – ‘of course more money cannot be the answer….’ Quite right too!

Paul - May 8, 2018 at 6:41pm

The sad truth is that grandparents do not have an automatic right to contact with their grandchildren. However, family courts do recognise the invaluable role that grandparents have to play in their grandchildrens lives and it is very rare that the court would refuse a grandparent access to grandchildren unless there is evidence of abuse or violence, however, with the rise of applications to the court by grandparents and the mother;s denials because the father could contact the children at the grandparents location, it is now becoming very difficult.
As one parent usually the mother raises objections you are likely to have to attend a full hearing in which both parties can put forward their evidence. You will need to persuade the court that you have a meaningful and on-going relationship with your grandchildren, which significantly benefits their lives.
Now grandmothers are now finding out how difficult it is to get contact with their grandchildren as fathers have witnessed over decades.

Helen Dudden - May 8, 2018 at 7:54pm

I was one of the grandparents who campaigned for better rights.
With the understanding of how this has effected my family personally, I have pushed for change with international law. Children are controlled, to this I add, I believe wrongly by a parent.
I was not allowed legal justice in Spain, after my grandchild became another added, to a non return.
There was a pro bono completed by Freshfields for ECAS in 2006 on the problems. Never put into practice, it just faded into the background.
I also, mention the case of Beth Alexander and her twins in Vienna. Nothing could move this one forward. Our Government tried.
Several years ago, I wrote something for the meeting of The Hague Convention on the subject, also Brussels 11a.
We have problems with family law, no one should be in control, it’s most certainly not justice.
John what do you suggest?

Dave - May 8, 2018 at 9:02pm

Great to read an ex practicing solicitor suggesting the removal of legal aid is the reason for more grand parents having to issue court proceedings to get to see their grandchildren… clearly not aware of the past efforts of individuals with if I recall the help of Ester Ransen in one case to highlight the plight when separation causes in some cases children prevented from seeing grandparents… perhaps the author should take more time to research this. How about parents that use children as weapons – best interests of a child? Well of course no one loves a conflict more than a solicitor…got to protect those jobs eh John?

Helen Dudden - May 9, 2018 at 10:25am

I was useful when my grandchild cried for me, he was not well. Not allowed “Cross Border Funding.” As a solicitor told me here, it could end as it started, no foundation. The cost of action in the EU could run into £10, 000 pounds. Even more.
I’m still the only one allowed to visit, but I’ve been unwell for a year.
I’m useful, I suppose that could be considered positive.
Well we need change, perhaps that is the most important point to make.
Fathers found this out, as we have. No one has the right to control the life of others!

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