Ensuring that the law protects the rights of grandchildren and grandparents

As a matrimonial practitioner, who has had over 45 years’ experience dealing with divorce and family issues, the plight of grandchildren and their relationship with their grandparents today is a subject very close to my heart and that of my practice, Lloyd Platt & Co. The company has dealt with thousands of grandparents who want to see their grandchildren and for a variety of reasons have been deprived of that opportunity. For the most part, these grandparents have previously had a very close and loving relationship with their grandchildren who have found themselves in the midst of a family dispute, a divorce involving their children, separation or death of their children. Following this, there has been a unilateral decision by one of the party’s to simply stop their children from seeing their grandparents. The pain and distress caused to grandchildren due to being stopped from seeing their grandparents often occurs at a time when they really need their grandparents, and often the grandparents do not understand why this severance has occurred, which means that the impact of such separation is incalculable.

On 31 January 2017, a petition was started before parliament by several grandparents’ groups, which gained literally thousands of signatures, but all came to nothing when then prime minister Theresa May called a snap election. Since that time the situation for grandchildren and grandparents has worsened beyond anything anticipated and the situation cannot be allowed to continue.

In May 2019, the European Court of Justice ruled that grandparents have a legal right to see their grandchildren. The right of access also refers to other persons with whom it is important for the child to maintain a relationship. Whilst the country has now left the EU, it is vital that these issues are incorporated firmly into British law.

The current law

What rights do grandparents have and what changes could be implemented so that these rights are not overlooked and swept aside, as they are now, in certain circumstances. The overarching issue that presently relates to grandparents and grandchildren is that the current government and successive governments before them naively believe that most grandparents will reach agreement with the parents of their grandchildren or their carers about contact arrangements. This principle is outmoded and fundamentally wrong. Those who can agree, of course do agree, those who cannot are stuck with the current cumbersome and outmoded system.

Under the Children Act 1989, as amended, if you are a parent whose name is on the child’s birth certificate, you automatically have what is known as parental responsibility and the automatic right to apply to the court about any issues relating to the children, such as when you see them and where they are to live, etc. By stark contrast a grandparent has no automatic right whatsoever. This means that if you cannot reach agreement, your only remedy is to apply to court and, in so doing, as a grandparent, you not only have to overcome one hurdle, but two, which are imposed by the law.

Under the Children Act, as amended, a grandparent has to apply to the court first for leave before they can go as far as applying for what is known as a child arrangements order, i.e., the right to see their grandchildren. Grandparents who have to take this additional step know that the briefing paper published in 2006 by the House of Commons states that the intention behind forcing grandparents to apply for leave is to act as filter to sift out those applications that are not in the child’s best interests. The law also confirms that the granting of leave does not automatically presume that an application for a child arrangements order will be successful.

In 2017, I made a speech to parliament. In response, the Labour Government in 2010 stated in their family justice review that they wanted to look at the need to remove the necessity for grandparents to apply for leave. When they finally finished their report in November 2011, they concluded, in my view, unfairly and inappropriately that there was no need for the provision for leave to be eradicated. The government stated by way of justification that the process ‘prevents hopeless or vexatious applications that are not in the interests of the child’. This has been the position ever since.

Following a campaign undertaken by grandparents in 2018, the justice secretary looked at this issue again and concluded once again that there was no need to remove this provision for grandparents to apply for leave. It is my view and those of many practitioners that the reason for this ongoing decision to force grandparents to apply for leave is a political, based on a lack of funds. In 2018, legal funding was available, but there were not enough judges or courts or judicial time available and it is believed that by putting in this extra hurdle, it will prevent many grandparents from applying in the first instance because of the cost and stress involved.

Often when a judge has to determine whether it is in the best interests of a grandchild to see their grandparents it has been more than a year since they last saw each other because of the way the system works. It is unpalatable that grandparents should be denied contact because the system works against them. There is a complete naivety in the presumption that everyone will agree things readily and easily, which does not happen in practice.

The test that is applied during an application for leave is that the court should have particular regard to the nature of the proposed application for what is known as a Section 8 child arrangements order, the applicant’s connection with the child and any risk that the proposed application will impact a child’s life to such an extent that he or she would be harmed by it. Accordingly, when looking at whether to grant leave, the welfare of the child is not the paramount consideration. If leave is granted, then a child arrangements order can be pursued and it is at this stage that the child’s welfare should be the court’s paramount consideration.

In 2018, Lloyd Platt & Co drew up amendments by inserting an appendix into the Children Act 1989. It was named ‘The Grandchild and Grandparent Relationship Act’, which we designated as an act to promote the continuing involvement of grandchildren with their grandparents and to amend the provisions of the Children Act 1989 in so far as it related to applications for child arrangements orders. What we undertook was a change to certain paragraphs about the welfare of the children and grandparents’ involvement so that grandparents could be added as interested people. The drafting has already been undertaken and all that is needed is for the government of the day to implement this relationship between grandchildren and their grandparents. What we must not lose sight of is that the UN Convention on the Rights of a Child indicates that the primary consideration in all actions concerning children should be the best interests of the child and the UN Convention very much supports the contention that grandparents should be in the lives of their grandchildren. So why are the British, who have signed up to that convention, not taken it on board or incorporated it into the law?

The UN Convention on the Rights of a Child

Under Article 5 of the Convention, parents and others have responsibilities, rights and duties to direct and guide their children, so that as they grow, they learn to use their rights properly. Under Article 4, the government is supposed to take all available measures to implement children’s rights. It is a duty of governments to incorporate particular provisions set out in the convention into domestic law that impose legal duties and to have regard to the convention, national strategies and action plans for children. Convention rights cover varying aspects of the child’s life, for example, the right to an identity and Article 3 explains that the child’s best interests must be a top priority in all decisions and actions that affect children. This article states that all adults shall do what is best for the children and shall think about how their decisions will affect children. In determining what is in the children’s best interests, the child’s own views and feelings should be taken into account. Surely, one of the most important considerations here is the right of a grandchild to see their grandparents and not enough emphasis has been given to the articles in the convention that clearly signpost this.

The statistics

In 2001, almost 60% of grandparents saw their grandchildren at least once a week, 10% saw them less than once in every three months, and 2% did not see them at all.

In 2019, the numbers rose again. Further research that was undertaken found that one in four families receive some kind of childcare support from grandparents and almost all families receive some kind of financial support from them. Given that more women are working than ever before, grandparents are being relied on more than ever and whilst, of course, there has been an increase in the recruitment of au pairs and nannies, the first choice to address childcare needs is the child’s grandparents. It is also clear that in care cases involving a local authority, grandparents have not been involved sufficiently when children are put up for adoption or being taken into care. By the time that grandparents are consulted, they are involved too late to be part of the choice made by the local authority. All of these issues under the current system have left thousands, if not millions, of grandparents feeling that they are ignored, undermined and unappreciated for what they do for their grandchildren. Further, grandchildren have been severed from contact with their grandparents in circumstances where they cannot understand why they appear to have been abandoned by their grandparents.

Elsewhere

In other countries, the only issues relating to grandparents appears to be how to decide the time adequately and sensibly in instances where two parents have split up and both want to see their children as much as possible, whilst at the same time allocating adequate contact for the grandparents with their grandchildren. The way in which many states have dealt with this issue is to deal with each situation on a case-by-case basis, looking at the circumstances of each case and what time is available and what benefits the grandparents can bring to that equation. In California, Florida and many other US states, they have managed to very successfully divide the time between such parties and have not ever felt the need to impose the requirement for leave. When leave applications are issued for grandparents to have contact, the first preliminary hearing can easily filter out inappropriate claims, so there is no loss of momentum to the grandparents concerned. This equally applies in all other countries.

Conclusion

In March 2022, my firm sponsored a survey with Savata to establish clearly the extent of the difficulties faced by grandparents in regard to seeing their grandchildren. The survey showed that younger grandparents are more likely to be prevented from seeing their grandchildren than grandparents who are 50+ years old. A fifth of grandparents were worried about being prevented from seeing their grandchildren, this goes up to two-thirds amongst those under the age of 40. Among the grandparents who have been prevented from seeing their grandchildren, the majority had been prevented from seeing one or two of their grandchildren, at least. The main person preventing grandparents from seeing their grandchildren was either their child or their son’s wife or partner. Over half of the grandparents had been in touch for more than a year with their grandchildren before contact was stopped and almost 50% had been prevented from seeing their grandchildren for over a year. Almost three in four were close to their grandchildren prior to contact being stopped, with grandparents under 70 years old having the closest relationships. A personal disagreement or argument was the main reason for which a third of all grandparents were stopped from seeing their grandchildren.

Despite being denied contact with their grandchildren, nearly eight in ten grandparents tried to maintain contact with their grandchildren. The majority tried to talk to their grandchildren, write to them or send them presents. The majority of grandparents were penalised for attempting to contact their grandchildren. Before they were denied contact with their grandchildren, most grandparents were spending time with them and felt financially or emotionally involved. Two-thirds of all the grandparents surveyed felt there was not enough awareness of the pain caused to both them and their grandchildren due to not having each other in their lives. Almost nine in ten grandparents felt that it should be the right of every grandchild in the UK to have their grandparents involved in their lives, mirroring the UN Convention on the Rights of a Child.

The survey also went on to demonstrate that at least two million grandparents were being deprived of the opportunity of seeing at least one or two of their grandchildren. Across the board, this means that there could be in excess of four to five million grandchildren prevented from seeing their grandparents at a time when mental health issues impacting children have never been higher and the need for the support of grandparents is ever more important.

I will continue to fight for the law to change and to be simplified and for there to be the setting up of an independent court to hear grandparents’ cases on a daily basis to get rid of the huge backlog of cases waiting to be heard by the court, so that grandparents and grandchildren can be united as soon as possible and in the interests of every grandchild in this country.