Denise Laverty

There have been a number of news reports in recent days commenting on MPs calling for the Government to ‘enshrine in law’ the right for grandparents to see their grandchildren after a divorce. The issue was debated in Parliament last week and the Ministry of Justice has said it would consider the proposal.

This is not the first time there has been such a call; various organisations and groups have been calling for a change in law, both in England and in Scotland, for many years now. If the changes actually happen what would they mean? Would it make any difference to grandparents who find themselves in the awful position of being prevented from having contact with their grandchildren?

The difference between England and Scotland

Firstly let’s have a look at the difference between the current position as it is between England and Scotland. In England under the Children’s Act 1989 an application can be made for a Child Arrangements Order. This is an order that regulates who a child should live with, spend time with or otherwise have contact with. You are either “entitled to apply” to the Court to make the application or you need to ask the Court for leave, i.e. permission to apply. Anyone with parental rights and responsibilities is entitled to apply and anybody else would need the permission of the Court. Grandparents in England therefore have a two stage process to go through, firstly applying to the Court to obtain permission to thereafter apply to the Court for Child Arrangements Order.

The position in Scotland is slightly different. Whereas grandparents in both England and Scotland do not automatically acquire any legal rights, in Scotland provided they have an “interest” they can apply to the Court for a Contact Order. The law in Scotland is contained within the Children’s Scotland Act 1995. Under this Act the Court can make an order to regulate with whom a child should live or regulate the arrangements in maintaining “personal relations and direct contact”, commonly known as a Contact Order.

So what would the difference be if the proposed reforms were enacted and grandparents acquired automatic rights to contact with their grandchildren? It might reinforce to any parent considering denying the grandparent contact that this just isn’t on. In England I suspect that the first stage of the process, i.e. the applying for permission to make an application for a Child Arrangements Order, might be abolished. But sadly the reality, in the majority of cases, is that it would make little difference. At the end of the day if you have the parent of a child who is determined, for whatever reason, to prevent a grandparent from seeing that child, they will do so whether the grandparent has legal rights or not, in the same way that thousands of parents with legal rights are denied contact with their children. The options available to that grandparent to ‘enforce their rights’ would be exactly the same whether they have a legal right to contact or not. They would have the same options that are currently available to them.

What are the options?

In a situation like this whether you are a parent or a grandparent, you should always try, if possible, to firstly speak to the parent who is denying the contact. There might be reasons why they are doing so, these may be unfounded, but genuine in their eyes. I have come across situations where a parent doesn’t want the children to see their grandparents because, e.g. the grandparents smoke in the house or they refuse to accept that they have failing eyesight and still insist on driving a car or there may be a fear that the grandparent asking for contact is only doing so as an indirect way to secure contact for their own child with whom the parent already has an ongoing contact dispute. If you can speak to the parent and recognise any concerns or fears that they may have, you can discuss ways to overcome these.

If that doesn’t work or you feel unable to speak directly to the parent, then you could suggest discussing things at mediation. Mediation would provide you with an independent third party who can help facilitate the conversation between the grandparent and the parent with a view to trying to help you reach an agreement that will allow contact. During the mediation you can discuss any terms or conditions that it might be appropriate to attach to assure the parent.

Ultimately, if neither of the two options above are possible or do not work, then the grandparent can apply to the Court for a contact order. This should always be seen as a last resort.

How much does it cost?

Any Court action will involve costs. If you are not eligible for Legal Aid, then you will have to pay your solicitor privately. If you raise an action in Scotland and you do not reach an agreement with the parent, and therefore have to take the action right to its final hearing, called a Proof, then you could expect to spend upwards of £10,000 or £20,000. Sometimes raising an action itself is enough for the parent to be prepared to discuss things with you and reach an agreement. Sometimes the action is raised and the Court will assign a first hearing, called a Child Welfare Hearing, at which both the parent and the grandparent have to attend. Often at this hearing an agreement can be reached. Sadly there will be instances where the raising of the action and attending a Child Welfare Hearing do not result in an agreement and it is necessary for a Proof to be undertaken.

Is there anything I can do as a grandparent to prevent contact being denied to me?

Yes there is. It is always difficult when you see your own child going through a separation. In my experience where parents themselves are able to reach an agreement as to contact then, usually, there isn’t a difficulty with grandparents seeing the children. However when the parents are in conflict, this can unfortunately extend to other members of the family including grandparents. It is always difficult in these situations not to be seen to be taking sides. You naturally want to support your own child but in doing so you are quite possibly unaware that anything that you might say about their ex-partner can find its way back to them and can be the cause of their refusal to allow the grandparent to see the children. Difficult as it may be, my advice would be to try to remain out of the parents own conflict. Try contacting the parent directly. Offer to meet up with them. Offer to help, such help could include offering to babysit, or pick up the children after school. It is important to let them know that whilst they may have unresolved issues with your child, that you are and always want to remain a good grandparent and don’t want anything to diminish your relationship with the grandchildren. Don’t be dragged into the disagreements between your child and the other parent and, importantly, never disparage the parent in front of the children or within their earshot.

It won’t always be possible to remain neutral but if you can or you can be seen to be remaining as neutral as possible this will go some way to reducing the anger that the other parent may then direct towards the grandparent. It is usually this anger which ultimately results in the withdrawal of the grandparents contact with the children.

There is much emphasis on grandparents being given automatic legal rights and whilst this is currently in the hands of the Ministry for Justice, grandparents should not think that they have to wait until the time comes, if that time ever comes, when legal rights are automatically given to them before doing anything about being denied contact with their grandchildren. At the end of the day the Court will be supportive of a grandparent applying for contact unless there is good reason why the child should be kept away from them. As with all applications to the Court involving children, the over-riding principal is what is in the best interests of the child.