Grandparents’ rights to see grandchildren

One of the common misconceptions surrounding family law is that grandparents have an inherent or automatic right to see or spend time with their grandchildren - in other words, have grandparents’ rights. There is nothing enshrined in law to grant grandparents automatic rights based on their biological connection alone. However, the happy fact is that a court would rarely deny grandparents access to their grandchildren unless there is a specific reason to do so. 

Here, we outline the different legal avenues open to grandparents to get access to their grandchildren:

• Child Arrangements Order to spend time with your grandchildren
• What is a Child Arrangements ‘no order’ principle?
• What if a parent objects to a grandparent seeing their grandchild?
• What if I have a Child Arrangements Order in place, but the parents are preventing me from seeing my grandchildren?
• Special guardianship order
• Adoption of grandchildren by grandparents

Child Arrangements Order to spend time with your grandchildren

If, for any reason, a person with parental responsibility were to object to or try to prevent you from seeing your grandchild, and you cannot reach an agreement with them, you will need to apply to the court for a court order.

Because there is no automatic legal right to contact grandparents, the Child Arrangements Order would be the document that enshrines your legal rights and responsibilities as a grandparent. The court application is a two-step process:

1. apply for permission to apply for a Child Arrangements Order
2. apply for a Child Arrangements Order.

What is a Child Arrangements Order?

A Child Arrangements Order (CAO) is an order regulating arrangements relating to either of the following:

• with whom a child is to live, spend time or otherwise have contact, and
• when a child is to live, spend time or otherwise have contact with any person.

Getting permission to apply for a Child Arrangements Order

The court will consider a number of factors before granting you permission to apply for a CAO, as follows:

• your history of contact with your grandchild
• what you are seeking by way of contact – times, locations, etc and 
• whether what you are seeking would be beneficial for your grandchild. 

Applying for a Child Arrangements Order

The court recognises the value and importance of a child spending time with their grandparents.  The court has to balance this with the wishes of the children and the wishes of the parents (which are not necessarily the same), and each case has its own unique facts.  These situations can be fraught with difficulty and should be carefully navigated. A skilled family lawyer may be able to guide you to mediation services to help prevent hostilities from escalating and the involvement of the courts.

The court has several principles that it considers before making a CAO. However, the paramount consideration is always the welfare of the child. For example, the court will consider:

• the existing arrangements that you have in place and that the parents have in place
• whether the arrangements you seek would take away time from the parents in such a way that it would not be in the child’s best interests. 

What is the ‘no order’ principle?

Another key principle is the ‘no order’ principle, whereby the court will not make an order if they do not think the order would further the welfare of that child. 

An example of where a CAO might not be given (or perhaps not in the terms requested) would be where there was a history or allegations of domestic abuse surrounding the grandparent. If there were allegations of this nature, the court would determine on a balance of probabilities whether these allegations were true at a fact-finding hearing and then consider whether they should make a CAO and on what terms. Even in such circumstances, the court may still determine that the children can spend time with their grandparents, but only in such a way as to protect that child’s welfare (perhaps through contact taking place remotely or being supervised). 

It would only be in extreme circumstances where the court would determine that no contact should be allowed with a grandparent. 

Call our specialist solicitors on 0808 231 1320

What if a parent objects to a grandparent seeing their grandchild?

If a parent objects, they may raise their reasons with the court. The court will then consider what information they require to decide on the best arrangements for the child.

What if I have a Child Arrangements Order in place, but the parents are preventing me from seeing my grandchildren?

This is an upsetting and frustrating situation that, unfortunately, many people find themselves in. The court will consider why this has happened and what can be done to facilitate the arrangements without difficulty in the future.

The court has in place several mechanisms which it can apply to the parent to enforce your CAO, including:

• parenting courses 
• compensation to be paid (e.g. you had travel tickets that were not used because contact was prevented) 
• compulsory unpaid work (otherwise known as community service)
• a fine
• imprisonment – this is an extreme enforcement mechanism, and one the court is unlikely to use, as it would result in depriving the children of their parents. However, if they continue to breach a CAO (which by its nature is in place because it supports the wellbeing of that child), then they risk harming their children’s welfare. Therefore, repeated breaches without reasonable excuse might sometimes result in imprisonment.  

In the first instance, the court will look at trying to resolve the issues rather than move to enforcement. 

Special guardianship order

This is usually intended for situations when the children cannot live with their birth parents and require secure accommodation. Often the court will look to blood relatives in such a situation and this includes grandparents. A Special Guardianship Order confers parental responsibility for the child subject to the application to the applicant, for example to the grandparent.

The SGO, therefore, allows the special guardian to make day-to-day arrangements for the child and decisions about the child’s upbringing, such as schooling.  

To apply for a Special Guardianship Order, as a grandparent, you need to have one of the following:

• have in place a CAO
• have lived with the child for 3 out of the last 5 years, or because you are a relative of the child, have had the child live with you for the year immediately before application 
• have consent of the local authority (if the child is in care)
• have consent of those with parental responsibility (usually the birth parents but also anyone else with a CAO)
• have permission of the court.

Unlike adoption (see below), a Special Guardianship Order does not cut the legal tie of automatic parental responsibility between a child and their birth parents. However, the parental responsibility of the special guardian can be exercised to the exclusion of others with parental responsibility, effectively overriding the parental responsibility of the birth parents. However, there are limits to an SGO which are:

• you cannot change the child’s surname or
• remove them from the jurisdiction (of England and Wales) for three months or more without the consent of all those with parental responsibility.

Adoption of grandchildren by grandparents

Adoption is a draconian but sometimes necessary measure that will completely sever the legal link between a child and their parents. If the child is not in care and both of their parents are alive, an adoption order will rarely be appropriate. However, it can happen, and an example of where adoption by a grandparent might be appropriate would be where a single mother decides that she does not want to raise her child. 

Parents can consent to their child being adopted or generally placed for adoption. The child will need to be six weeks old or older for parents to give such consent. If a child is placed into adoption, the courts will prefer adoption by a blood relative over a stranger. 

However, every situation is different, and the starting point is taking specialist legal advice. At Tees, we are here to help you navigate your options and decide which avenue is right for you.

Call our specialist solicitors on 0808 231 1320

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Cambridgeshire: Cambridge
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston

But we can help you wherever you are in England and Wales.