The pride and joy of becoming a grandparent is something extremely special; seeing your own children have children of their own and sharing your own experiences with them as they set out on their own parenting journey. Many grandparents love the interaction they have with their grandchildren and form a special bond with them – and there’s little doubt that the grandchildren benefit from a good and close relationship with their grandparents.
However, it is a sad fact of life that sometimes parents separate and divorce. It is of course very difficult for the parents and children to navigate their way through this change in circumstances. The place that the wider family, grandparents in particular, have in the children’s lives is often overlooked. Grandparents sometimes find that they are suddenly having much less contact – or possibly even none at all – with their grandchildren through no fault of their own. This might be because the children now live further away, or because of communication difficulties and tensions between the parents. More importantly, the grandchildren can end up losing valuable input from their grandparents.
This article will explain what grandparents can do to maintain contact with their grandchildren if things turn difficult after their parents split up.
What automatic right do grandparents have to contact with their grandchildren?
The legal situation is that no one except those who have parental responsibility have automatic rights. Those with parental responsibility are usually the child’s mother and the child’s father, as long as he was married to the child’s mother at the time of birth and/or is named as the father on the child’s birth certificate.
Therefore, grandparents are unlikely to have automatic legal rights to contact with their grandchildren, however harsh and unfair that might seem. So, it is often the case that the grandparents have to tread a very difficult line to keep in touch with both parents – the grandparents’ own child and their ex-partner – constructively and with the focus on the grandchildren’s wellbeing.
What can grandparents do?
It’s important to remember that the break-up of the parent’s relationship does not mean that the grandparents automatically lose contact with their grandchildren. The family will often be able to find a way of keeping grandparents in touch with their grandchildren. After all, grandparents are often a great help in looking after the children at the best of times, and this can be even more so when the parents are going through the difficult process of separation or divorce. So, what can grandparents do in this delicate situation?
The ideal situation is to keep yourselves neutral in the dispute between parents and be available to both of them for help and support – particularly with childcare – while they are going through this process. Explain how much you value your relationship with your grandchildren and you would still like to be part of their family moving forward. Try to ask both parents what they would like from you in terms of support for their children. That way, you are in a better position to be able to offer practical help that both parents will find really valuable.
If these discussions with the parents are in writing, either by email or by letter, it is a good idea to keep copies in case you can’t come to an agreement with the parents. Ultimately, you might need to show the court what efforts you have made. Similarly, if your discussions with the parents are by telephone, write yourself a note summarising what was discussed – and make a note also of times when you have attempted to make telephone contact without success.
These days, children are likely to have much more independent means of communication through their own phones, email or social media accounts than their grandparents ever had at their age! This makes continuing contact much easier if this is not actively blocked or forbidden by the parents. The Covid-19 pandemic got people much more used to video or Zoom calls as a viable substitute to face-to-face contact.
What can I do if one or both parents don’t agree?
If your direct discussions do not end with an agreement and they are making it difficult for you to contact your grandchildren, there are still things you can do to keep in contact. The first option you should try is mediation or your local child contact service, and if this is not successful, you could consider asking the Family Court to make an order allowing you to have direct and/or indirect contact with your grandchildren.
Child contact services
Child contact services are available immediately, reduce delay for children and are more accessible than court arrangements. Child contact centres enable parenting and grandparenting to continue after a relationship ends, ensuring children feel supported and are safe.
NACCC accredited child contact centres help grandparents and their grandchildren in a number of ways. First and foremost, they provide a safe, neutral, welcoming space for children to spend time with their grandparents, and other family members. They also provide space to ensure continuity for both children and grandparents, ensure family values can be imparted, traditions can be continued and can improve a child’s sense of belonging as family wisdom and history can be passed on.
Prior to visiting a child contact centre, there are ways that grandparents can prepare for the meeting. It is important that grandparents do not take sides, regardless of the way they feel their own child has been treated. This may obviously be very difficult, but a “blame game” is not only damaging to the children but can also cause problems for the other parent, and the possible loss of the contact for the grandparents.
Of course, it may be difficult to persuade a son or daughter in-law to use a child contact centre. If this is the case, the grandparent could draw on previous positive involvement with the child to demonstrate why they should have some contact.
It is also essential to reassure the parent that you are not taking sides, but love the children and want to be involved in their lives. In short, with a child contact centre in almost every town in the country, grandparenting doesn‘t have to end when a family relationship does. Find your nearest accredited child contact centre
Family mediation
There are two good reasons why mediation should be the next step if direct discussions with the parents are not working out. Firstly, mediation is often a very effective, relatively quick and inexpensive way of coming to an agreement. Your mediator can also help make a referral to your local child contact service if that would be a useful stepping-stone to getting contact going again. Secondly, anyone wanting to commence proceedings in the family court has to demonstrate that they have attempted mediation unless, in rare cases, they are exempt from this requirement.
A family mediator is an impartial third-party whose job is to help the parties in a dispute discuss their issues and agree on a mutually acceptable middle ground to resolve their differences – in this case, how much and what sort of contact you as grandparents should have with your grandchildren moving forward.
The first step is a Mediation Information & Assessment Meeting (MIAM). This is a confidential meeting you have with just the mediator – the parents are not involved – when you explain the issue, what you have done so far to try to resolve matters and what outcome you would like to see from the process – e.g., how much contact you would like to have with your grandchildren from now on. The mediator will also explain the process with you and answer any questions you have about how this will work. If you and the mediator agree you want to progress to the next step, the mediator will invite the parents to have a MIAM of their own. In the same way as your MIAM, the meeting is confidential and you will not find out what was said here. They will explain their side of the story to the mediator.
Mediation is a voluntary process, so can only go ahead if all parties – the two sides to the dispute and the mediator – agree it is a suitable way forward. If this is the case, the first joint mediation session will be scheduled. The mediator will act as a “referee” in the discussions, making sure they remain focused, constructive and that all parties have the chance to have their say. It is important to note that the mediator will not make decisions for you. They will help you identify the areas you agree on, the areas where there are differences of opinion and help you negotiate to find a suitable compromise to these areas. The parents and grandparents themselves will make the final decision.
Is mediation free?
Mediation is not a free service. The Family Mediation Council advise that you can expect to pay about £120 per person for a MIAM. As an example, Direct Mediation Services charge £130 per person for the MIAM and £130 per person per hour for each mediation session. If you are on a low income or receiving certain types of benefits and do not have many savings, you might qualify for Legal aid. This would pay all the costs of your mediation – and also part of the costs for the other party.
What happens after mediation?
Ideally, all parties will agree to resolve their differences through mediation and agree a pattern of contact between grandparents and grandchildren moving forward. If no agreement is made through mediation, or if one party to the dispute does not agree to try mediation, the mediator will give you a certificate confirming you have attempted mediation but that this is not a suitable way to resolve your disagreement. This will enable you to start an application through the Family Court for a Child Arrangement Order under the Children Act (1989).
Children Act (1989) application
Making an application for a court order granting you contact with your grandchildren really should be the last resort because it can be a very lengthy process, stressful for all concerned – including the grandchildren, knowing there is a battle going on over them – and potentially very expensive if solicitors are involved to argue your case in court. The process is as follows:
Application
The application to open proceedings is made on a form C100. You will also need to include your mediator’s certificate confirming that you have attempted mediation. As mentioned before, as a grandparent you do not have the automatic right to initiate proceedings, so you have to ask the court’s permission by submitting a form C2 as well. If you had regular contact with your grandchildren previously, the court would be likely to grant permission for your application.
The C100 looks daunting to complete, but help is available! There is a helpful guide from the Family Court Application Service which has a free download pack to help you – or for a small fee they can take you through completing the form yourself online or complete it for you.
Alternatively, you could ask a solicitor to prepare and submit the forms for you, although that is likely to be a much more costly option.
You then need to submit the forms to the court. It is easiest to do this online. You also have to pay the court fee – currently £232 (from 2022). If you are on a low income or receiving certain benefits, you might qualify for help in paying this fee. More details, including the application form and a calculator to help you see if you qualify, are available here.
Cafcass
If the court grants permission to make the application, they will ask an agency – usually Cafcass – to produce a report to guide them. The Cafcass officer will talk to the parents and yourselves – and possibly the child(ren) as well. They will then produce a report for the court with recommendations as to the contact that they think will be in the child’s best interests.
Although the court is not bound to follow the Cafcass report recommendations, they usually do.
Court hearing
The court will then set a date for the hearing. Depending on the complexity of the case, there might need to be more than one hearing.
The judge will hear evidence from both sides and, guided by the Cafcass report, will then make a decision about what is in the child’s best interests.
Although proceedings in the family court are much more informal than you might expect from watching court dramas on TV, having to stand up and give evidence in court is still a daunting prospect for many people. So, do you have to pay a solicitor or barrister to represent you?
The short answer is no. There are advantages and disadvantages of appointing a solicitor or barrister to speak for you in court. Clearly, they have much more experience of how the courts work and what the law says in respect of your situation and can speak very eloquently and persuasively on your behalf.
The main downside is that this is the most expensive way of taking your case through the courts. Solicitors’ fees for preparing and conducting your case and representing you in court can run into thousands of pounds and no form of legal aid or assistance is available for help with these fees.
Also, if you can afford to pay for a solicitor, you might need to consider how this might look to the person you are already in conflict with if they cannot afford to pay for their own solicitor. They may well feel bullied or treated unfairly by you, and whatever the outcome of the case, it could cause even more tension between you in the future.
If you don’t want to use a solicitor or can’t afford one, you can present your own case in court. This is called being a litigant in person. You will already have outlined the basis of what contact you are asking for in your C100, and the judge will want you to explain in more detail what contact you used to have with your grandchildren, what you did together, and why you think the children would be disadvantaged if you did not have contact with them. However, people who are not used to how the family court works often find themselves tongue-tied when having to explain their reasons in front of the judge – and this is one time when you do not want your mind to go temporarily blank!
A middle ground is to have the support of what is known in legal terms as a McKenzie Friend. This is anyone who is not a solicitor, but gives you some support in court, helping you with paperwork, for example, or discreetly suggesting to you points you could make or questions you could ask. You could use someone you know to go with you to court as a McKenzie Friend and might be willing to help you free of charge. However, if you are considering using a McKenzie Friend, someone who has some knowledge of the law and court procedures would probably be even more helpful to you www.familylawdecisions.co.uk. They will probably make a modest charge for their services – but probably much less than a solicitor would charge. The main difference between a McKenzie Friend and a solicitor is that the McKenzie Friend cannot give you formal legal advice and is not authorised to speak in court on your behalf, whereas a solicitor does both.
Court decision
At the end of the hearing(s), if the judge considers it is in the grandchildren’s interests to have contact with the grandparents, they will make an order specifying how this contact will happen – i.e., whether indirectly by phone, video call etc, or directly in the form of visits – and how often. This order is binding on both sides.
What happens if the parents don’t stick to what’s been agreed?
If it is a mediation agreement that has not been complied with and the parents can’t be persuaded to continue with the contact as agreed – possibly through a further round of mediation – you would need to apply to the family court for an order, as outlined above. However, the fact that the parents had already agreed a pattern of contact with you through mediation would probably be very helpful to your case. The parents would have to show the judge good reason why they did not want to continue with the agreement.
If the parents ignore a court order from your previous C100 (& C2) application, that could potentially be much more serious. You can bring the case back to the court with another C100 (& C2) application to explain that the court order has been breached. The court has powers to enforce the order they made and can even punish the individual(s) who have not complied with the court’s previous order.
The NACCC team would like to thank Stuart from Direct Mediation Services for helping with this article.
The Kinship charity have also written an article with further information and support.
