13 May 2011, by Taylor King Family Law Solicitors
The recent article in The Guardian, “I’ve been robbed of my role” (7th May 2011, retrieved http://www.guardian.co.uk/lifeandstyle/2011/may/07/grandparents-divorce-separation-contact) highlighted the painful experiences of three grandmothers who had lost contact with their grandchildren. The article estimates that 1 million grandparents are currently being denied access to their grandchildren. Whilst we are waiting for the results of the Family Justice Review and for the government to propose changes, the court can and does order residence and contact in favour of grandparents.
Grandparents have no automatic right to have contact with their grandchildren. If agreement cannot be reached by negotiation or through mediation, the grandparents are required to seek permission from the court to apply for a contact order. In considering such applications the court will have to balance the benefits of contact with the grandparents as against possible disruption caused to the children if the court gives permission for a contested hearing.
Even if permission to apply is granted, this does not mean that the application for contact will be successful. However, in recent years, the courts have shown an increasing tendency to grant residence and contact orders in favour of grandparents. With regard to residence applications, the courts used to take the view that it was in the child’s best interests if he or she was brought up by their biological parent as opposed to a grandparent, step parent or anyone else.
In the recent case, Re B  UKSC 5, that presumption was challenged by the Supreme Court. The case concerned the competing claims of a father and the maternal grandmother. The child had lived with his grandmother throughout his life and, by consent, a residence order had been granted in favour of the grandmother. The father applied for a residence order, which was opposed by the grandmother on the basis that the child was settled and a move would be detrimental. By a unanimous decision, it was decided that, as the welfare of the child is the paramount consideration, the father did not necessarily enjoy a more favourable position just because he was a biological parent. The Supreme Court ruled in favour of the grandmother.
In another case, Re W (A minor)  EWCA Civ 1280, the mother had applied for permission to appeal against an order that had transferred residence of her child to the paternal grandmother. The background to this case was that the father had applied in 2007 for contact and for the following three years the mother had constantly breached contact orders, made unsupported allegations against the father and on one occasion was sent to prison for contempt. The judge had decided it would be in the best interests of the child to live with her paternal grandmother. In reaching this decision, the judge had regard to the emotional harm that the child would suffer if she remained with the mother because of the mother’s implacable hostility towards contact with the father. The application for permission to appeal the decision was refused on the basis that the judge had properly taken into account the best interests of the child and had not transferred residence to the grandmother in any way as a punishment for the mother’s behaviour.
When Deputy Prime Minister Nick Clegg announced the Childhood and Families Taskforce June 2010, he said “we are looking to promote greater access rights to grandparents. We all know the role grandparent can play in helping children through these difficult times.” It is hoped that the government will be proactive in supporting the rights of grandparents to have contact with grandchildren. Given the cases above, it would appear that grandparents are disadvantaged mainly due to the requirement that they obtain permission (or ‘leave’) to apply for contact or residence. The Family Justice Review interim report in March encouraged arrangements for contact between grandparents and grandchildren, however they made no recommendation that the requirement for leave to apply for residence or contact should be lifted.
It seems likely that the Family Justice Review will recommend that, upon separation, parents should enter into a written parental agreement recording the arrangements for the children’s care after separation. This agreement should also encompass arrangements for contact with the grandparents and other members of the extended families. These parental agreements will not be binding, but they will be constructive to the extent that they consider extended family members.
For the time being, grandparents who are being denied contact will have to face the added inconvenience of seeking initial permission from the court before an application for contact can be made. As with all cases concerning children, early advice and early action is best.