Easter eggs

Whilst it is recognised by the courts in England and Wales that grandparents play a significant role in the life of their grandchildren and that this can be at risk when families separate, unfortunately, grandparents do not have automatic rights in law to spend time with their grandchildren

Where an amicable agreement can be reached with the parents as to the arrangements for grandparents to spend time with their grandchildren, the court adopts what is referred to as the “no order” principle, which means that an order should only be made if in all the circumstances it is better to do so. If however the grandparents feel that an order is necessary, an application can be made to the court for a consent order. This would reflect the agreement reached between the grandparents and the parents, which would be legally binding upon all involved.

If it is not possible to reach an agreement directly with the parents or with the assistance of a lawyer through correspondence, then consideration will need to be given to making an application to the court to resolve matters. This is a two-stage process, namely:

a). an application for permission, as grandparents do not automatically have rights in law to make an application to the court; and

b). the substantive application for a “Child Arrangements” order.

Before either of the above processes can be entered into, mediation needs to be considered as this is a prerequisite prior to any court application being made. Mediation is a process whereby the parties are assisted by an independent third party (the mediator) to discuss the issues that have arisen and to try and reach a resolution, which is satisfactory to all involved. Mediation is a valuable process, which can assist parties by facilitating discussions and encouraging parties to “unlock horns” and remain focused on what really matters to them and their family. There are exemptions to the mediation process, such as if there has been domestic abuse or child protection concerns.

If matters are unable to be resolved via the mediation process, then the first stage is to make an application to the court for permission to make an application in respect of the arrangements for the grandchildren. The court will consider its merit i.e. if it is likely to succeed and then determine whether to grant permission to make the said application.

Once permission has been granted by the court, the second stage is for the grandparents to make a formal application for a “Child Arrangements” order.

The following principles are given the highest priority by the court when considering applications in respect of children:

1/. The child’s welfare is of the paramount importance - the matters which need to be taken into account when determining the arrangements for any children are set out at Section 1 (3) of the Children Act 1989 and are known collectively as the “Welfare Checklist”. They are as follows:-

a). The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).

b). His/her physical, emotional and educational needs.

c). The likely effect on him/her of any change in his/her circumstances.

d). His/her age, sex, background and any characteristics of his/her which the court considers relevant.

e). Any harm which he/she has suffered or is at risk of suffering.

f). How capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs.

2/. Any delay in sorting out the arrangements for the child is likely to prejudice the welfare of the child.

If you would like advice in respect of making an application to the court, then please contact our Family Team, who will be happy to assist.

Important guidance on articles published by Fitzhugh Gates Solicitors

Articles published through this website contain only general advice and are not intended as professional counsel and should not be used as such.

If you require specific advice on a particular issue or problem highlighted by this article, then please contact Fitzhugh Gates, the Solicitors for Brighton and Hove and Shoreham-by-Sea. 

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