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15/09/2022

Guardianship and Getting to See Your Grandchildren: The Rights of Grandparents After a Family Breakdown

National Grandparents Day came about from a 9-year-old boy’s request in 1969 to his then president asking for a special day to celebrate and honour grandparents. With much rallying support it is now a national day of celebration across the globe.

Poignantly following the death of the late Queen Elizabeth II, a “grannie”,  heartfelt tributes have been spoken and written by her grandchildren as to their grateful thanks for  her  guidance and support during happy and not so happy times which are held as cherished moments.

Many grandparents play an active role in their grandchildren’s lives.  Yet there are times when family relationships deteriorate to such an extent that one (or both) parents do not allow contact with grandchildren. This is particularly common when parents separate or divorce but can also happen after family disputes and even a death.

What rights do grandparents have?

Grandparents do not automatically have parental responsibility. This means they do not have any legal rights to see their grandchildren. Unless there’s a Court order in place, it is up to the parents to decide who their children see.

What options are available?

When a parent wants to have more contact with their child, he/she must apply to Court for a Child Arrangement Order. However, the situation is a little different for grandparents. This is because grandparents don’t have parental responsibility, which means grandparents must first seek permission to apply for a Court order. This may be the only option if one or both parents prevent grandparents from seeing their grandchildren.

The Court acknowledge the important role grandparents can play in a child’s life, so when permission is sought, the Court will consider the relationship between the grandparents and the grandchild.

The Court will also consider:

  1. Why the application has been made
  2. Reasons why contact has stopped
  3. What impact an order would have on the child and family
  4. Whether the child is wanting contact with their grandparent (this will be dependent on the child’s age)

The welfare of the child is the Court’s primary concern. Within any application, it will have to be demonstrated that an order would be beneficial for the child, and in their best interests to spend time with their grandparents.

What happens if the Court grants permission for an application to be made?

If a grandparent’s application is successful, they can then apply to the Court for a Child Arrangements Order, seeking an order for contact. If either one or both parents raise an objection there will be final hearing where all parties will give evidence. The Court will then make a ruling based on what it feels is in the child’s best interests.

Special Guardianship

There are circumstances which result in children living with their grandparents permanently.   It then becomes necessary to ensure they have the authority to make day to day decisions for their care and wellbeing, perhaps including  school changes as they move up  from nursery, to primary schools, medical intervention whether in an emergency or routinely, moving area or country.  In such circumstances a special Guardianship Oder should be considered.

Is it possible for grandparents to apply for a special guardianship order?

A ‘special guardianship order’ is a court order that appoints someone as a child’s ‘special guardian’ when that child is unable to live with their birth parents and requires the security of a long-term placement. Whilst it stops short of granting full adoption rights a special guardianship order cannot be discharged by the birth parents without permission of the court.

It is increasingly common for grandparents to apply for special guardianship orders. Other family members can also apply. To be successful they must convince the court that it is in the best interests of the child for them to be a special guardian.

When making a special guardianship order the court will also consider contact arrangements for the birth parents with the child.

Once the special guardianship order is made it gives the special guardian an enhanced level of parental responsibility for the child. This means they will take day to day decisions relating to the child’s care and upbringing. Among the powers that a special guardian has is the right to remove a child from the UK for up to three months.

The local authority plays an important role in the special guardianship process and will be required to assess the need for support services.

If you would like advice or assistance on any issues raised in this blog, please contact Selena Ludick on 01737 854509 or [email protected]


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