“There is just a presumption that grandparents have a right to see their grandchildren”1. These are the words of Labour MP Darren Jones as reported in BBC News. When reflecting on the access rights of grandparents to see their grandchildren, he noted that he did not know that this was an issue until he became an MP. Often, many are unaware that they have no legal entitlement to see their grandchild until separation, family disagreements or other matters arise.
The law as it currently stands in England and Wales is that access to grandchildren by grandparents should be initially sought through the consent of the child’s parents or carers. However, in instances where an agreement cannot be reached, the grandparents can turn to the court. In contrast to the child’s parents and other people prescribed by the Children Act 1989, a grandparent, aunt or uncle does not have an automatic right to apply for a child arrangements order except in certain circumstances. They must instead seek the leave of the court, and if this is successful, they may make an application for a child arrangements order to grant either contact or residence.
A child arrangements order, introduced by the Children and Families Act 2014, replaced the residence and contact orders. A child arrangements order sets out where the child will reside and/or the contact that they will have with any person. When determining whether to make, vary or discharge a child arrangements order, the paramount consideration of the court is the child’s welfare. Though child arrangements orders can apply to a child under the age of 18, they cannot be made to have effect after the child reaches the age of 16, except in exceptional circumstances.
The Labour Government produced a Green Paper in 2010 that set out an intention to remove the leave requirement in England and Wales2. The Family Justice Review, set up in 2010, reported in November 2011 that the need for grandparents to apply for the leave of the court before making an application for contact should remain. The 2015 and 2017 Conservative governments did not express an interest in changing the rules. During the 2017 debate on the rights of grandparents to access, Sir Oliver Heald noted that the leave requirement is not intended to be an obstacle but is a filter to sift out the applications that are not in the best interests of the child3.
However, on 2nd May 2018, Conservative MP Nigel Huddleston secured a debate on the access rights of grandparents and other relatives, such as aunts and uncles. As he argued before the House of Commons, “the family dynamic that is often overlooked is that between grandparents and their grandchildren”4. However, this may also extend to other relationships, such as those between aunt and uncles with their nieces and nephews.
Lucy Frazer, Parliamentary Under-Secretary of Justice, acknowledged that the issue is one of many that the Department is reviewing. She noted that whilst the issues are important, the out-of-court settlement procedure must also be looked at5. The question of grandparents’ right to access to their grandchildren was agreed to by the House of Commons, and it was resolved that the House had considered the issue. It therefore remains to be seen whether this materialises as a change in the legislation of the Children Act 1989.
It might initially be thought that if the leave requirement is simply a filter, then it is not a barrier to grandparents who wish to apply for a child arrangements order. But as Nigel Huddleston raised the point in the House of Commons, although these leave requirements are not intended to be an obstacle, it often serves as one6. Seeking the leave requirement may be both a timely and costly process, with some grandparents having spent thousands of pounds on legal fees. Following the removal of legal aid, this can severely limit the prospects of grandparents, aunts and uncles being able to successfully apply. The complexity and unfamiliarity of the legal system should also not be ignored; having to navigate such a system to secure contact can act as a barrier to justice to these relatives.
Furthermore, the granting of leave does not guarantee that a child arrangements order will be made by the court. Therefore, it can be questioned whether this leave requirement is truly necessary in the first place. Even if it is intended to act as a sift for claims, the genuineness of the claim could alternatively be assessed when the court decides whether to grant a child arrangements order.
Grandparents, aunts, uncles and other relatives can have an important contributory effect on the life of a child. Grandparents, for example, can enrich the lives of children and even provide vital support to parents, such as through the provision of informal care of the children to avoid the increasing costs of childcare. There is a presumption of involvement under section 1(2A) of the Children Act 1989 that unless the contrary is shown, the involvement of a parent in the life of the child concerned will further the child’s welfare. Thus, this presumption can be rebutted. If we accept that grandparents and other relatives can also have a positive impact on the development of a child and their welfare, then should we not take a similar approach with respect to them?
It may be argued that Nigel Huddleston’s points should be seriously considered when this matter is reviewed. The importance of the points raised is reflected in the fact that this is an issue affecting the constituents of every single MP. Moreover, the support and development from other MPs in the debate highlights that careful review and awareness of rights of access is required. Hopefully, this will result in the leave requirement being removed for grandparents, aunts and uncles to ensure administrative justice prevails.
