Grandparents' rights to see grandchildren after a divorce could become law

This month, the House of Commons debated an amendment to the Children’s Act which gives children the right to have a relationship with close members of their extended family. The amendment would include not only grandparents, but also aunts and uncles. The House of Commons heard stories about grandparents being accused of harassment after sending birthday cards or Christmas presents to grandchildren. The Ministry of Justice plans to consider the proposal to change the law.

The law currently states that if an agreement cannot be reached with the parents, then grandparents can apply for a court order. However most grandparents will have to overcome an additional hurdle of obtaining the Court’s permission even to make an application to see their grandchildren.

The process was last reviewed in 2011 as part of a Family Justice Review when it was felt that this additional hurdle was necessary to stop applications motivated by a desire to cause distress to parents. The Ministry of Justice has said it will review whether or not this additional hurdle is still necessary.

In some cases, grandparents automatically have the right to apply to spend time with a grandchild:

• If the child has lived with them for more than one year;
• If the child is in the Local Authority’s care and the grandparent’s application is supported by the Local Authority;
• If consent has been given by all parties with parental responsibility;
• If the grandparent is the child’s Guardian or Special Guardian;
• If the grandparent is named within another party’s application for residence;
• If the grandparent is the  foster parent and the child  has lived with them for more than one year.

If the grandchild lives with their grandparents, the grandparents can apply for a Special Guardianship Order to keep the child living within the family. This may be appropriate if the parents are not able to look after their child.  

Grandparents may also be entitled to Grandparent Credits – financial support designed to assist those caring for a grandchild.

If you would like to speak to a member of the Family Law team about your rights as a grandparent, please call 0113 201 4902 or email family.law@emsleys.co.uk.