Most will agree that grandparents play an important role in the life of their grandchildren. However, following the breakdown in the relationship of the child’s parents or a dispute arising between the grandparent and child’s parents, grandparents can become excluded from the child’s life and may be unsure as to their rights and how best to approach the subject of spending time with the grandchildren should difficulties arise.
Whilst separated parents have a right to make an application to the court for a child arrangements order, grandparents may not know that they too can apply to the court to make an application for a Child Arrangements Order. As is the case with any application to court, this should be considered a last resort as court proceedings can be expensive and take time to resolve, and it is better for all concerned if matters can be resolved by agreement.” Sharon Williams, Family Law Solicitor.Sharon Williams, Family Law Solicitor, Sinclair Law
In the first instance if a dispute surrounding contact arises, you should try and reach an agreement with the child’s parents. This can be approached directly between the parties (unless there is any legal or other reason why direct communication is not possible) or with the assistance of a solicitor. It is advisable to communicate in writing so that all parties are clear as to the proposed arrangements and to hopefully allow for productive discussions. If a direct attempt with the parents does not achieve the desired outcome, a grandparent can make an application to court. However, unless specific criteria apply, a grandparent must first apply to the court for permission to make an application for a Child Arrangements Order.
The Application for permission to make an application should be served on all parties who have Parental Responsibility for the child (usually the parents) and following the application having been issued by the court, a hearing will take place for the court to consider whether permission to pursue an application for a Child Arrangements Order should be granted. Any person who is a party to the application can object but it is ultimately a matter for the court as to whether permission should be granted or otherwise. At the hearing to consider whether permission should be granted, the court will consider several factors, as set out within Section 10(9) of the Children Act 1989 and include but are not limited to:-
- The nature of the proposed application
- The applicant’s connection to the child
- Any risk that the proposed application might disrupt the child’s life to such an extent that he or she would be harmed by it.
The court is also likely to also consider the strength of the application and whether the application has any real prospect of success should permission to make an application be granted. Whilst the child’s welfare is the paramount consideration in a substantive application for a Child Arrangements Order, this is not the case for an initial application for permission. However, the child’s welfare is still likely to be considered by the court as part of its determination as to whether or not to grant permission.
It is therefore important that any application that is made to apply for permission to make an application for a Child Arrangements Order is properly prepared and includes all information it should so that your application has the greatest chance of being successful as should your application be refused, there may not be any legal grounds upon which the decision of the court could be challenged.
Should permission be granted, a substantive application can then be made for a Child Arrangements Order and at that stage, if one has not already been obtained the applicant would need to obtain a MIAM certificate from a mediator unless they are exempt from this requirement before pursuing the substantive application.
If you are a grandparent who is struggling to work out arrangements to spend time with your grandchildren, then our family law team is here to help. Contact Sinclair Law Solicitors today to schedule a free 30-minute consultation and receive expert legal advice on your options.