Julie Stather advances the case for reform of the law relating to the rights of grandchildren to see their grandparents.

It is some six years since I last wrote about the position of grandparents in the legal system (see ‘Enhancing the role of grandparents in the current legal landscape’, Family Law Week 2012) and much in society has changed since that time. Sadly, many grandparents and grandchildren are not able to maintain contact after parental separation, and this has been termed by some grandparents “a living bereavement” (Hansard, HC Deb 2 May 2018, vol. 640 col 171WH).

There are now more grandparents providing childcare and more multi-generational households, accompanied by a rising feeling on the part of grandparents that they should have a right to see their grandchildren. All of these factors have led to a 25 per cent rise in applications in the last year by grandparents asking for contact with their grandchildren (Hansard HC Deb 2 May 2018, vol. 640 col 173WH). This article concentrates on the position of grandparents and grandchildren in the aftermath of parental separation and with the prospect of private law applications looming.

The background

Grandparental applications to spend time or have indirect contact with grandchildren are governed by the Children Act 1989. The Act provides that other than in a very restrictive set of circumstances (see below), grandparents must seek the leave of the court. The court must apply the factors set out in s10(9) before it can grant permission for the making of a substantive application for contact under s8. When the Children Bill was passing through Parliament there was a debate about whether that leave requirement should remain. Lord Meston sought an amendment to the Bill calling the necessity to seek leave “an unnecessary hurdle in the case of grandparents” (Hansard, HL Deb 06 February 1989 vol. 503, ccl318-76). The response from the Lord Chancellor was that children and their parents should be protected from “unwarranted applications”. Lord Meston eventually withdrew his application for an amendment on the basis that there was provision in the Bill for subordinate legislation to be enacted which would allow grandparents to apply as of right if experience were to prove that grandparents were usually being granted leave. By contrast, there was no power in subordinate legislation to withdraw an automatic right to apply for an order. Lord Meston withdrew on the basis that, as he put it, “once the door is opened it cannot be closed again”.

The current situation

Since the passing into law of the Children Act 1989, there has been no subordinate legislation to alter the position of grandparents (or indeed any other categories of person) so that they no longer have to seek leave to make an application for what is now a child arrangements order. That is despite the high volume of grandparental applications now before the court (no figures are available as to how many of those applications result in a grant of leave to apply) and despite anecdotal evidence that the vast majority of applications are granted.

The 1989 Act provides that a grandparent must seek the leave of the court to apply for a child arrangements order other than in the following circumstances: under s10(5B) (as amended by the Children and Families Act 2014) where the child has resided with the applicant for at least one year immediately preceding the application; where the applicant has the consent of each person with whom the child lives under a child arrangements order (s10(5)(c)(i); or where each person with parental responsibility agrees (s10(5)(c)(iii). As Lord Meston observed in the original debate, it is highly unlikely that an application would need to be made to the court if in fact those with parental responsibility agree, and so in reality the exception is where the child has been living with the grandparents for three years. Whilst this exception would therefore mean that those from multi-generational households would not have to seek the leave of the court, those grandparents with extensive daily care of children which falls just short of the children living with them would still have to seek leave.

Originally the seeking of leave required a separate application and fee in addition to that which applied to the substantive application. That practical hurdle at least has now been dispensed with and grandparents make their application for leave on the same C2 form as their substantive application, and pay only one court fee of £215. For those daunted by the court system however, there is still a perceived hurdle in the requirement for leave and the argument which is required to be made to obtain that leave.

The case for reform

The Nuffield Foundation has carried out some interesting research on the provision of what it calls ‘informal childcare’ in the UK.  In its 2012 report ‘The role of informal childcare: A synthesis and review of the evidence’ one of the findings was that “the vast majority of informal childcare is done by grandparents rather than other relatives, friends or neighbours. Among working parents, similar proportions use formal childcare as use informal childcare, but grandparents are used more than twice as often as any other formal or informal childcare provider.”

This research is echoed in the findings of a recent YouGov poll carried out for Age UK that 40 per cent of the nation’s grandparents over the age of 50 (that is 5 million grandparents) have provided regular childcare for their grandchildren. Put another way, one in four families now rely on grandparents for childcare (Hansard, HC Deb 25 April 2017 vol. 264 col 496WH). So widespread is this practice that it apparently now has a new and somewhat unattractive name: ‘grannannying’. The importance of this societal change is that children in those situations may arguably be much closer to their grandparents, and so any breakdown of that relationship would be a far greater loss to those children.

There is an increase in the number of multi-generational households in the UK to such a degree that it is estimated there is a demand for an additional 125,000 such properties in the UK every year (NHBC Foundation report 2017: ‘Multi-generational living – an opportunity for UK house builders?’). The rise of that style of living is thought to be driven by families pooling resources, the need for help with childcare and the provision for support of older family members. Certainly that last factor is one which is very much acknowledged as being an increasing motivation for a number of families. Whatever the reasons for this rise in multi-generational living, the result will be a generation of children who are accustomed to living with their grandparents and for whom a cessation of contact with those grandparents would be devastating.

In April 2018, Nigel Huddlestone MP introduced a debate at Westminster Hall entitled ‘Grandchildren’s access rights to their grandparents’. In it, he quoted a young man who had not seen his grandparents since he was 10 years old: “as a child you are powerless to insist that you see your grandparents, however much you want to. I feel a sense of deep loss, guilt and regret. I truly hope that my grandparents still knew of our love for them, and that we were powerless to do anything” (Hansard, HC Deb 2 May 2018 vol. 640 col 170WH).

The final reason for the government to reassess the current situation is that grandparents themselves are becoming much more aware of the remedies open to them, most notably through the court system. The Bristol Grandparents Support Group has now been contacted by more than 6,000 grandparents in the 11 years since it was formed (Hansard, HC Deb 2 May 2018 vol. 640 col 172WH). There is an abundance of national and local support groups easily locatable on the internet, with Grandparents Plus and The Grandparents Association being two of the most well-known. What is perhaps most important is the fact that these enquiries from grandparents are not without foundation and are being acted upon: in 2016 2,000 grandparents applied for child arrangements orders, up from just over 1,600 in 2014 (source MoJ, Hansard HC Deb 2 May 2018, vol.640 col 173WH) and that figure is expected to rise this year. In a family court system that is already significantly burdened, this is not a trend which should be accepted without some serious consideration of whether these cases can be resolved more quickly and easily. There is no information as to how many child arrangements orders were actually made as a result of those applications (House of Commons Briefing Paper number 07574, 28.4.16) but whether or not an order was made, court time has clearly been used.

Some proposals for reform

It would obviously be desirable for disputes of this nature to be diverted away from the court system. Mediation would seem a good solution, but in situations where police are being called and anti-harassment laws being used against grandparents (Hansard, HC Deb 2 May 2018, vol. 640 col 173WH), sitting around a table with a hope of compromise might seem a little ambitious. There is some merit in the argument that if there was no longer a requirement for leave, parents might feel less certain of their absolute right to veto contact and therefore be more inclined to engage in discussion or formal mediation.

Children arbitration is now widely accepted as a form of dispute resolution which has the benefits of being speedy, convenient and cost effective whilst avoiding the stress of the court environment. The benefit if both sides can agree to arbitrate is that a decision will be made in a very much shorter time frame than the court system can facilitate. That can only be in the best interests of all involved, especially where grandparents are advancing in years or in poor health. Arbitration is currently only available to privately paying clients, but grandparents may be in a better financial position than most to meet that cost. The government could consider public funding of that service where the net effect is likely to be a cost saving overall compared with the money being spent by the court service (in terms of judicial time and court overheads) in allowing the cases to be litigated.

If the parties cannot agree to arbitrate or mediate, the only option left is that of applying to the court for an order. Some grandparents are reluctant to put their grandchildren through the trauma of court proceedings at what is already a difficult time for them. They are also wary of increasing tensions within the family (Hansard, HC Deb 25 April 2017, vol. 624 col 493WH). What can be done to improve the current system? The proposal for some years now and from different quarters has been that the requirement for leave of the court be removed. This was last proposed in a Labour Government Green Paper in 2010 entitled ‘Support for all: The Families and Relationships Green Paper’.

This proposal was examined as part of the independent Family Justice Review in 2011 led by David Norgrove which recommended that the requirement for leave should remain as a means of preventing hopeless or vexatious applications. The government accepted that recommendation and until the recent debates in Westminster in 2017 and 2018 the leave requirement has not been considered further.

What would the removal of the hurdle of the application for leave actually achieve? There are no data setting out how many applications for leave are actually refused, although anecdotally it seems incredibly rare. If that is the case, where is the merit in retaining legislation which seems only to increase the time spent in court, adds to the stress at least of the grandparents, adds to the cost of legal representation, and potentially dissuades parents from adopting a conciliatory approach? Back in 1989 the future use of subordinate legislation was envisaged to remedy precisely the situation it appears that we are now in; one in which there is a large volume of applications before the court which are routinely being granted. Perhaps now is the time for that new legislation; as David Mackintosh MP said in the 2017 Westminster Hall debate “It is a sad reflection on us that we have not managed properly to reflect in legislation the hugely important role that grandparents play in society” (Hansard, HC Deb 25 April 2017, vol. 624, col 492WH).

The government responded to the Norgrove recommendations in its document ‘The Government Response to the Family Justice Review: A system with families and children at its heart’ (February 2012). In it the government stated that wider family relationships should be considered in Parenting Agreements and parenting classes. Now, within the pro forma Parenting Plan on the CAFCASS website, parents are prompted to consider “When and how are we making sure that the children are seeing their grandparents?”. The problem with the form and its associated guidance however is that there is no simple explanation of the importance of grandparents, or prompts to consider exactly what role that grandparent has hitherto had in the child’s life, both of which could assist to focus the minds of parents dealing with emotive matters at a very difficult time. Lucy Frazer MP, the Parliamentary Under-Secretary of State for Justice had this to say on the importance of grandparents in the 2018 Westminster Hall debate: “Grandparents play a significant role in family life. There is something special about the bond between a grandparent and grandchild. The loving relationship that is formed often enriches family life. Grandparents provide stability when it is needed. They can give a sense of history and show how important it is to belong to a family. They can give familial support when it is needed, such as when it is difficult for more immediate family members to be called on” (Hansard, HC Deb 2 May 2018, vol. 640 col 182WH).

The other opportunity identified by the government to address the situation was through a parenting course. Parents coming before the court on their own applications for child arrangements orders are frequently directed to complete the Separated Parents Information Programme, although parents can also access it themselves where proceedings have not been issued. The Handbook to that programme helpfully set out that “Children benefit from the stability and sense of belonging that other family members can bring, especially at a time of instability and uncertainty. Spending time in another home where life carries on as normal can be a great comfort to them.” At least there is a prompt here for parents to consider whether, in a turbulent home situation, time with grandparents could be in the child’s welfare interests.

All of the above ideas have merit, but they all lack the imperative of the final proposal. In a world where the ‘voice of the child’ is becoming more important and more frequently heard, perhaps the answer is to make it the right of the child to see his or her grandparents, as in France. That was the angle adopted in the most recent of the Westminster Hall debates; it is a telling change that the 2017 debate was called ‘Grandparents’ Rights: Access to Grandchildren’ whereas the 2018 debate was entitled ‘Access Rights to Grandparents’ and was introduced as specifically considering the rights of the grandchildren to have contact with their grandparents. A change of emphasis towards considering the right of the child and his/her views could be brought about by adopting for grandparents the position as it now is for parents after the Children and Families Act 2014. That Act amended the Children Act 1989 by adding that when the court is considering any s8 application it is required “in relation to a parent who falls within CA 1989 s1(6)(a), to presume unless the contrary is shown that the involvement of that parent in the child’s life will further the child’s welfare”. The protection for the child is built into s1(6)(a) which is that the parent “can be involved in the child’s life in a way that does not put the child at risk of suffering harm”.

Were this presumption of involvement to be widened to include grandparents there would be a number of potential benefits:

(1) statute could be drafted such that courts would be bound to consider the child’s rights to see any wider family members when any application for a child arrangements order came before it and perhaps in addition even when child arrangements are considered as part of the divorce process

(2) the mandatory consideration of grandparents’ contact could work to encourage adults towards dispute resolution processes rather than applying through the court

(3) it could place grandparents in the position of being respondents to applications, which could ease tensions and might well assist in terms of costs

(4) CAFCASS would routinely have to consider grandparents as part of their welfare reporting and as part of recording and considering the voice of the child

(5) possibly the biggest benefit of a change of the statutory emphasis would be in terms of changing people’s way of thinking. It seems to be universally acknowledged that grandparents play an extremely important part in the lives of grandchildren in terms of emotional and practical support. If that relationship were then protected in law, perhaps parents would think more carefully before stopping contact and taking away from their child the lifelong benefits of that bond with grandparents.

Grandparents play an essential role in the lives of grandchildren, supporting their emotional and social development and enriching their sense of themselves and their history. In addition, changes in society now mean that many grandparents are playing a greater role practical role than ever. It is time that those changes and the value of grandparents’ role in children’s lives is acknowledged in law.

Article featured May 2018 on the Family Law Week website here.