When parents get divorced, they are encouraged to sort out arrangements for any children between themselves, so that things can remain as amicable as possible.
The best interests of the children should be the focal consideration and both parents should continue to have a strong involvement in their lives, so long as there are no welfare issues to consider.
The concept of ‘custody’ was traditionally used to define who children of divorce would predominantly live with; however, this has been abolished and, instead, parents will make ‘child arrangements.’
The change in terminology was an attempt to remove the concept of one parent being the ‘winner’ and one the ‘loser’, and to keep parties focused on making decisions based on what is best for the children.
In the event parents cannot agree on arrangements in relation to their children, they can apply to court for a child arrangement order to be made. Their right to apply is an automatic one, which means that although a parent may worry about the outcome of the application, they can relax somewhat in the knowledge that the court will make the best decision for the children.
Unfortunately the same cannot be said for grandparents in such circumstances. When their children decide to divorce, this can mean an uncertain future in relation to contact with their grandchildren.
This is due to the fact that if one of the children’s parents decides they do not want the grandparents to maintain contact with the children, the grandparents do not have an automatic right to apply to court for a child arrangement order to be made. Instead, they must apply to the court for permission to make an application for such an order.
It goes without saying that grandparents in the above position should always attempt to negotiate with whichever parent is making contact difficult for them. However, when such negotiations aren’t successful, many people argue that grandparents should have an automatic right to apply to the court for a child arrangement order.
The above argument is based on the fact that many grandparents have extremely close relationships with their grandchildren, and it can be traumatic for both the children and the grandparents when such relationships come to a very sudden halt upon divorce.
Many people also find it unfair that relationships between grandparents and their grandchildren should stop because of ill-feelings between the parents. Neither the grandparents nor the children should be punished because of any animosity between parents.
Whilst there have been parliamentary debates about the difficulties grandparents face in maintaining contact with their grandchildren after divorce, no action has been taken yet.
In the 2008 report, ‘Beyond the nuclear: Including the wider family’, it is pointed out that the government argues that if grandparents had an automatic right to apply for contact, this could impact a child’s rights being paramount.
The government claims that it would be hard for a child’s welfare to be considered, or for their rights to be protected, if grandparents were not required to request permission to apply to court.
The main problem with the government’s argument is that it is not consistent. Any potential welfare issues that could emerge from providing grandparents with an automatic right to apply for contact surely already attach to the existing automatic right that allows parents, or those with parental responsibility, to apply for contact.
It is important to note that no one is campaigning for grandparents to have an automatic right to contact, as this could indeed be detrimental. Instead, they should simply be granted an automatic right to be acknowledged and considered in child arrangements.
Providing grandparents with an automatic right to apply for a child arrangement order, would signify the important role they play in many families.
Eliminating the need to request permission to make an application to court would remove one huge hurdle that grandparents currently often need to go through during an already emotionally draining and troubling time. This would make the process easier and, hopefully, in cases where it is appropriate, allow contact to resume as soon as possible.
Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.