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Grandparents' rights9th May 2018 Family Law
If you start typing the word 'grandparent' into Google, the first option served up is 'grandparents rights'. We know that internet search sites succeed when they give users the content they want, based on the experience of millions of previous searches. This example of autocomplete in action reflects a sad reality: for a significant number of families, the relationship between grandparents and their grandchildren is characterised by conflict, causing heartbreak for too many.
Last week saw a Westminster Hall debate on the subject of grandparents' rights of access to their grandchildren. Many MPs appear to have had a significant number of contacts from constituents who have lost contact with their grandchildren and feel they have nowhere else to turn.
At present, the law allows anyone with a genuine reason to apply to court for a child arrangements order, which governs who a child sees, who they live with etc. Certain people such as parents or any person the child has lived with for three years or more can apply for a child arrangements order as of right. Others including grandparents and other members of the extended family must first apply for the leave of the court. Some grandparents' rights advocates think this permission stage should be dropped. There appear to be some misconceptions about this element of the process. The requirement for leave exists to weed out hopeless applications or, for example, those made to undermine a child-parent relationship. As the minister responsible for this area of policy pointed out during the debate, the request for leave can be made at the same time as the application for a substantive order and does not require a separate court fee to be paid. From experience, the courts are very receptive to leave applications from grandparents in most cases; the hurdle is not high. It seems unlikely that the law will be changed here.
Another change advocated by the MP who convened the debate, Nigel Huddleston, is for another part of the Children Act 1989 to be amended. Currently, the court must presume that the involvement of a parent in a child's life will 'further the child's welfare' 'unless the contrary can be shown'. This means that parental involvement, which can take different forms in different cases, is to be promoted other than in cases where it really would not be in a child's best interests. Mr Huddleston raised the possibility of adding grandparents and/or extended family more generally into this presumption of involvement. These would only be presumptions and the court can override them where a child's welfare demands it. I can see why this is an attractive idea but there could be real problems in defining who is included in the presumption. In some families, an aunt, uncle, cousin or friend could be a much more significant figure to a child than a grandparent.
Laws can reflect a society's aspirations as well as delivering concrete legislative results. As Mr Huddleston said:
Changing the law also changes the culture so that deliberately restricting the access of one family member to another becomes socially unacceptable. The legal change that France [which has made a similar change] has already pursued is very important, as is the social tone that comes with it
This week, a Ministry of Justice spokesman said: 'We will consider any proposals for helping children maintain involvement with grandparents, together with other potential reforms to the family justice system which are currently being looking at.' There is a lot to deal with in the family justice system at the moment but it seems possible that something may be done to increase the profile of grandparental involvement, even if it is only in terms of attitude or 'social tone' rather than wholesale reform to the way issues regarding the upbringing of children are resolved.
One theme running through the debate was the difficulty and trauma, both perceived and actual, of bringing family disputes into the court arena. This is a wider problem that does not just affect grandparents. The catastrophic cuts to legal aid undertaken in the 2010-15 parliament have played a well-documented role in making the family justice system more difficult to navigate for those left unrepresented due to their financial circumstances. There is a cogent argument that lack of access to representation has forced people into court prematurely where a combination of early advice and lawyer to lawyer dialogue could have avoided an application.
However, this is not the only issue. The disappointing take up of family mediation, for which some legal aid is still available, continues to be a cause for concern. Of course, there will always need to be a court-based option to deal with situations where dialogue has broken down completely but we, as a society, could be doing so much more with mediation as well as family therapy and other forms of early intervention. In some families, it can be too late to save a grandparental or other significant relationship by the time a case has reached the court. 2016 saw mediation on our TV screens in a BBC fly-on-the-wall documentary entitled 'Mr v Mrs: Call the Mediator', but it still feels like unfamiliar territory in the culture. Family rifts are so common that it would surely make sense for engaging in professional dispute resolution to become as normal as visiting a GP or dentist. As the recent focus on mental health in society has shown, we are not that good at talking about non-physical personal problems until a crisis arises.
For the time being, disquiet around the issue of grandparental estrangement is not going to go away. As family lawyers, our most important contribution is to promote constructive conflict resolution, both in our practice and beyond.