The rights of grandparents

In the absence of automatic rights, grandparents may find themselves navigating complex legal paths to maintain contact with their grandchildren when family relationships break down. This article explores the options available to grandparents, including seeking consent from parents, mediation, and applying for a Section 8 Order. The court's primary concern remains the welfare of the child, which it assesses through various factors known as the welfare checklist.

When parents separate or have a disagreement with a relevant child’s grandparents, this can often leave grandparents in a precarious position regarding contact with their grandchildren. The default position is that grandparents do not have any automatic rights, as they do not have parental responsibility. Parental responsibility is a legal concept that denotes the rights a person has to make key decisions about a child’s welfare. These decisions permeate every aspect of the child’s life including health, whom the child lives with, education, etc. Mothers automatically obtain parental responsibility upon the child’s birth and fathers obtain it through marriage or by being named on the birth certificate. 

Grandparents do not automatically have parental responsibility, so they are limited in terms of the decisions they can make as regards the child and contact will depend upon the will of the parents. However, there are a number of options available to grandparents where they may wish to acquire more rights or to have more contact with their grandchild(ren).

1. To agree by Consent 

The starting point should always be attempting to agree anything with the parents of the child directly. This will save on any legal costs and will help to preserve familial relationships. 

2. Mediation 

Where it is not possible to agree by consent, prior to applying to the Court, grandparents will need to attend a Meditation Information and Assessment Meeting (a MIAM). This is a compulsory requirement, but some grandparents may be exempt in limited circumstances. Attending mediation has several benefits; it allows parties to discuss matters with a neutral third person in a confidential environment and will hopefully help to find a resolution without significant conflict. 

3. Seeking an Order 

Where mediation has been unsuccessful, a grandparent can apply for a Section 8 Order. There are three different kinds of orders that the Court can make. One such Order is a Child Arrangements Order, which regulates when and with whom a child is to live, spend time or otherwise have contact. 

In order to obtain an order from the Court, as grandparents do not have parental responsibility, they will need to obtain permission to apply first. There are some circumstances where permission to apply is not required but certain conditions must be met first. 

When considering whether or not to grant an order, the Court’s paramount consideration will be the welfare of the child. When contemplating the child’s welfare, the Court will have regard to several factors which is known as the welfare checklist. These factors include, but are not limited to, the wishes and feelings of the child concerned, any harm which the child has suffered or are at risk of suffering and how capable the relevant person is of meeting the child’s needs. They will also consider the Applicant’s connection with the child. If an order is granted, the terms contained within the Order will be binding on the parties involved and any party can seek to enforce the Order when it has been breached. 

Written by Deoni De Silva (Trainee Solicitor)

If you would like to discuss any issues raised in this article, please contact us on 020 8290 0333 or email info@judge-priestley.co.uk to speak with one of our solicitors in the Family Team. 

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