Possible New Legal Rights for Grandparents
Written by Claire Pomeroy
As campaigning for the forthcoming General Election intensifies, the main political parties are battling to win the “family vote”. The Government’s recently published Green Paper on Families and Relationships pledges to give grandparents new legal rights which will make it easier for them to apply for contact and residence orders.
Currently, under section 10 of the Children Act 1989, only a parent, guardian, person with parental responsibility or a person with a residence order in their favour has an automatic right to apply for an order relating to a child. This excludes grandparents (unless there is already a residence order in their favour), meaning that they must first jump through the legal hoop of applying for leave of the court to pursue their application for residence or contact.
In deciding whether to grant leave, the court will have particular regard to the considerations stipulated by section 10(9), including whether there is any risk of the proposed application disrupting the child’s life to such an extent that they would be harmed by it. Where the child is being cared for by a Local Authority, the court will also consider the Authority’s plans for the child’s future, and the wishes and feelings of the child’s parents.
A report drawn up last year by Families Need Fathers, the Grandparents’ Association and the Family Matters Institute found that sadly, 42% of grandparents lose contact with their grandchildren after a family separation or divorce. An even higher number – 67% - are prevented from providing childcare to their grandchildren or taking them on outings, even when they had historically regularly done so. The report, entitled ‘Beyond the Nuclear’, says that many grandparents cannot afford to engage in an often complicated and expensive legal battle for contact.
The lobbying by the Grandparents’ Association for a change in the law has not fallen on deaf ears. The Government is now proposing to remove the requirement that grandparents obtain permission from the court before applying for contact, and to provide more information for grandparents about their legal and other options in maintaining a relationship with their grandchildren following separation or divorce. The Children’s Secretary, Ed Balls, has said:
“Removing the barriers that grandparents face in courts when they wish to see their grandchildren through times of divorce and separation will relieve an enormous burden currently placed on grandparents”.
The Conservative Party are expected to promise similar rights for grandparents when they publish their anticipated Green Paper on families shortly. David Willetts, the Conservative Shadow Minister for family policy, has said:
“This adoption of the Conservative idea to give greater rights to grandparents is a welcome move. For far too long, the government has focussed only on the relationship between mother and baby. In doing so, they have ignored other important relationships…involving other family members like grandparents”.
The reality is that many grandparents might still, in many cases, need to be prepared to embark on a lengthy and expensive legal process in order to establish contact with their grandchildren. However, the removal of the need to fight to get through the court door in the first place signals that the Government understand the important role that many grandparents play in supporting and caring for their grandchildren, and recognise the positive impact that a relationship with a grandparent can have on a child’s life.
Claire Pomeroy
Cripps Harries Hall LLP
February 2010