Grandparents and Divorce – The Forgotten Victims

When it comes to divorce, a great deal of focus is put on the nuclear family – the parents and the children.  Grandparents are often left in the dark, wondering if, how and when they will ever see their beloved grandchildren again.  This can be especially true for the paternal grandparents if the children live predominantly with their mother, as it is only natural that in most cases, she will prioritise her parent’s relationship with her children.

Resolution, a group of 6,500 family law solicitors who follow a Code of Practice to promote a constructive, non-confrontational approach to family matters, states that grandparents are in a unique position of being able to help children through their parents’ divorce by providing a listening ear and talking to them about how they are feeling[1].

Anger and blame

Every parent wants to protect their child, whether they are four years old or forty.  If your son or daughter’s marriage or cohabitation has disintegrated, it is human nature to want to take sides.  However, in order to support your grandchildren, this is best avoided.  In most cases, the best role you can play is a supporting one.  Both the parents and the grandchildren need reassurance that although things are difficult now, life will get better in time.

Can I insist on seeing my grandchildren if the parents are divorcing?

Grandparents do not have an automatic legal right to have contact with their grandchildren.  If one or both parents are preventing you from having contact with your grandchildren (either by in person or by phone, email etc), and you have done your best to address the situation through informal means, you will need to take advice from a family law solicitor.

The family law system in England and Wales is designed to help parties resolve family law disputes between themselves.  If gentle approaches such as writing a letter to the parents fails to change the situation, your solicitor may suggest a round-table negotiation or mediation session to try and break the stalemate.

Mediation and negotiation are both voluntary processes.  Your solicitor can invite the parents to attend a Mediation Information and Assessment Meeting (MIAM) to establish if mediation is suitable.  However, they cannot be forced to attend, although such a refusal may be seen in an unfavourable light by the judge should the matter proceed to the Family Court.

If negotiation or mediation are unsuccessful in resolving the dispute or the parents refuse to attend mediation, grandparents can apply for a Child Arrangement Order under section 8 of the Children Act 1989.

In most cases, grandparents must obtain leave from the court to apply for a Child Arrangement Order.  In deciding whether to grant leave, the court will have regard to:

  • The nature of the proposed application for the Order;
  • The applicant’s connection with the child;
  • Any risk there might be of that proposed application disrupting the child’s life to such an extent that it would harm them.

The most important point to remember when going through the court process is the judge is concerned with your rights to see your grandchildren only to the extent of their welfare.  The welfare of the child is the overriding consideration of the Family Court; therefore, the decision as to whether to grant a Child Arrangement Order and what form the Order will take depends on the importance of the grandparental relationship from the child’s point of view.

What rights do I have if social services are involved with my grandchildren?

If your grandchildren’s parents are experiencing problems and social services have become involved, you may be able to obtain a Special Guardianship Order so you can take over the care of your grandchildren.

A Special Guardianship Order is an order appointing one or more individuals to be a child’s special guardian.  It has been described as ‘a half-way house’ between residence orders and adoption orders.  Parental responsibility is conferred with Special Guardianship, meaning you can make decisions regarding the day-to-day care of the children, their schooling and medical requirements.

In cases where the children are very young, or the parents are permanently unable to take care of them, you may wish to apply to adopt your grandchildren.  If you wish to adopt your grandchild, the parents will need to give their consent unless:

  • they cannot be traced
  • they’re incapable of giving consent, e.g. due to a mental disability
  • the child would be put at risk if they weren’t adopted

Making the decision to adopt a grandchild is not one to be taken lightly.  It is therefore important you speak with your solicitor and other professional support services when considering such a step.

Final words

The relationship between grandparents and their grandchildren is often not given the credit it deserves.  Grandparents provide love, warmth, security, wisdom, and attention to children.  If your grandchildren’s parents are separating or experiencing personal difficulties, your presence is crucial to provide stability and support.  If the ability to be a loving presence in your grandchildren’s lives is being withheld, you should seek legal advice.

Bennett Griffin are award-winning solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner.  Our family law team can advise and represent you in matters regarding your grandchildren.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.

[1] http://www.resolution.org.uk/grandparents/