Retirees and Family Law: Grandchildren

Whether you are a Nanny, Nanna or Grandma, or a Grandad or Gramps, grandchildren will often hold a special place in the hearts of their grandparents. Those grandparents will often play an integral role in the family as one of the adults often called upon to help raise those children, especially in modern times where it is not uncommon for both parents to be working.

Grandparental access in family law

When considering grandchildren from the family law perspective, the issue that immediately springs to mind relates to securing access to children. Unfortunately, English Law does not provide grandparents with an automatic nor a presumed right to see or to have contact with their grandchildren. It is the child’s parents who will hold parental responsibility and the legal power to choose how, when and if the child spends time with a grandparent.

Access applications for Grandparents

If difficulties arise, ideally, these would be resolved through discussions between the relevant adults, but if that is not possible, then a grandparent can consider making an application to the court. Save for a few special cases, most grandparents making an application of this type would need the court’s permission to do so. 

When considering whether to grant permission, the Judge will consider the nature of the application, the applicant’s connection with the child and any risk that the application would disrupt the child’s life to such an extent that it would cause harm. In the event that permission is granted, then the overall decision as to the arrangements for the child would be decided on the basis of what was considered to be in the child’s best interests, taking into account;

The child’s wishes and feelings in so far as they can be ascertained in light of their age and understanding,

• The child’s needs,

• The applicant’s ability to meet those needs,

• Risk of harm,

• The effect of any change in circumstances.

Securing Grandparental Guardianship

There are also other situations where a grandparent may need to become more involved, particularly if one or both of the parents die and the grandchild needs to come and live with their grandparent. In that situation, it is really important that there is formal recognition of the grandparent as the person with care to ensure that they are able to make important decisions for that child with regard to education, health, and welfare. This might be achieved in a number of ways depending upon the circumstances in existence when the parent died.

a) Appointment as a child’s guardian in a will. If the parent dies leaving a will which appointed a guardian for the children in the event of their death, that will take effect on that parent’s death if either;

• There is no other person with parental responsibility at the date of death or; The parent who died was named in a child arrangements order as a person with whom the child lived, and that order was in force at the time that they died. 

• In the event that there is a person with parental responsibility alive at the date of the other parent’s death and no child arrangements order in place, then the appointment of the guardian will not take effect until after that other person dies.

And

b) Appointment by the court. If the child has no parent with parental responsibility, or the parent, guardian or special guardian of the child was named in a child arrangements order as a person with whom the child shall live and had died whilst the order was in force, or the child’s only or last surviving special guardian dies. In that case, an application can be made to the court to ask to be appointed as the child’s guardian.

There is nothing which prevents more than one guardian from being appointed, and if the appointment is in circumstances where there had been a child arrangements order in effect, it can result in parental responsibility being shared with either other guardians or the non-resident parent.

Another situation in which parental responsibility would be acquired is if the court makes a child arrangements order confirming that a child lives with their grandparent or a special guardianship order. This might be appropriate if, for some reason, it is not appropriate for the child to remain living with their parent, for example, due to ill health or neglect.

The importance of  open communication

The issues surrounding grandparents and grandchildren are often fraught with complex emotional and practical challenges which need to be addressed and overcome. Keeping constructive and open communication is often key. Encouraging parents to make a will setting out what is to happen in the event of their death allows for potentially one less thing to worry about at what would no doubt be a time of immense grief if the worst were to happen. Should relationships break down, then seeking legal advice from solicitors specialising in these issues provides you with the best chance of securing a happy outcome.

At Birkett Long LLP, our specialist family solicitors all offer a free, no obligation, 15-minute telephone call to discuss your needs and how we can help. I can be contacted on 01206 217305 or by email at karen.johnson@birkettlong.co.uk.