Where a family breakdown has taken place, grandparents will often want to support their child but may also be concerned about their own position. Being a step removed from the separating couple, grandparents can often be a “safe port” for children. But what happens when they are cut off? There is no guaranteed provision for their own specific time with the children but there are circumstances where this can be applied for.
Topics to be answered in this article
What rights of access do grandparents have in a divorce?
There are no automatic rights for grandparents to have contact with grandchildren under UK law. Unless you hold parental responsibility for a child, any time spent with the children will be at the discretion of their parents or an order of the court, as referred to below.
Grandparents are entitled to apply for contact with a child, although they may require the permission of the court in order to do so. Before making any such application, grandparents should attempt to approach the child’s parent/parents to try to reach agreement. If these conversations are unsuccessful, a referral should be made to mediators for assistance. Parties are required to attempt non-court dispute resolution before making any application and mediation can be an extremely useful resource.
What is a Child Arrangement Order (CAO)?
A child arrangements order is part of a raft of powers the court has to make decisions regarding a child’s wellbeing. A child arrangements order is used to determine with whom a child lives and, most likely in terms of grandparents, what time is spent with the other party/parties. Once an order is made, those terms will be binding upon every party to the application and can be enforced by the court if necessary. They are civil orders, however, and so if a child is not made available to spend time with a grandparent, the police could not be called upon to enforce the contact.
These orders can be interim – made while the application is ongoing, or final – made at the end of the proceedings and confirming the final, enduring arrangements.
Who can apply for a Child Arrangement Order?
In the first instance, applications are made by parents of the child/children in question. However, extended family members such as grandparents, aunts/uncles, brothers or sisters are able to apply if they meet the relevant criteria. For example, the child has lived with them for a period of at least 12 months. Where these criteria are not met, it is necessary in the first instance to apply to the court for permission to lodge an application. The court will then consider the merit of any application, not the actual application, when deciding whether to grant permission.
What are the implications of a CAO?
Both the grandparents as Applicants and the parents as Respondents, are required to abide by the directions of the court. If either party fails to comply, the other can return the matter to court to either enforce the order or have it set aside. Failing to comply with a child arrangements order can have serious consequences, which can include fines or unpaid work.
A child arrangements order will preserve specific time to be spent with the Applicant, in this case the grandparents. This means that there will be defined times when the child and grandparents will be together and how this looks will vary from family to family. It may be that the child has tea with grandparents every Wednesday, for example, or one weekend each month is spent with the grandparents. It could allow the grandparents to take the child on holiday each year. This time will be separate from any set aside for the other parties, so if the children are to be with the mother on specific days, then time with the maternal grandparents would be in addition to this.
The final arrangement does not always allow for direct contact (time spent face to face) and instead this could allow for indirect contact – telephone calls or sending letters/gifts to the children. The ultimate decision will depend upon what is best for the child and not what is sought by the grandparents. The welfare of the subject child/children is the overarching principle in all Children Act applications and will be the paramount concern of the court.
How to apply for a CAO
The new Family Procedure Rules require Applicants to attempt non-court dispute resolution before applying to court for a child arrangements order and mediation can be an excellent means to resolve matters. The Applicants must invite the other parties, who will be everyone who holds parental responsibility for the child, to mediate with them and evidence will be needed from the mediators that this has been attempted.
If mediation is unsuccessful, an application for a child arrangements order can be made online via the Government website or in paper to the family courts. These applications should be made in the court nearest to the children and if they are not, the proceedings will be transferred there. If permission is required to apply for an order, if the court agree that this should be considered then the first hearing will be to decide whether to permit the application. If successful, the court will then list the First Hearing Dispute Resolution Appointment (FHDRA).
Before the FHDRA takes place, all parties will be contacted by Cafcass who are the independent body that assists the court in all such applications. They will carry out background checks on all parties with the police and Children’s Services. They will also speak to the parties for their perspectives – why they believe the application is being made, what are their concerns, what do they feel ought to happen. Cafcass then prepare a letter for the court, setting out their findings and their recommendations. In some cases, the court will direct for further evidence to be provided before the FHDRA as a result of those recommendations.
How can Goughs help?
It can take months to reach the FHDRA. Seeking advice early on to determine whether an application will be necessary and what steps ought to be carried out first will help to avoid any additional delay.
Goughs can help to resolve matters before an application becomes necessary and where this is unavoidable, we are best placed to offer support and guidance all the way through. We can prepare applications and provide full representation, or simply advise in the background. We have experienced lawyers available in all offices and appointments can be offered in person, via Teams or on the telephone depending on preference. Get in contact with us today.
