Recent discussions in Parliament have highlighted the difficult position extended family members find themselves in when disputes arise between the adults involved in a child’s life. Grandparents, aunts and uncles frequently struggle to maintain a meaningful relationship with grandchildren, nieces and nephews in circumstances where parents deny contact. The effect this can have on grandparents has been referred to as a kind of “living bereavement”.
Earlier this year Nigel Huddleston, MP for Mid Worcestershire, called for reform to the family justice system. This move was spurred on by heart-wrenching stories of grandparents and grandchildren denied the opportunity to develop strong emotional bonds when contact is prevented. The parliamentary debate emphasised the emotional pain of grandchildren left feeling an important figure in their lives no longer loves or cares for them and the anguish of a grandparent’s guilt and shame when relations with their children break down.
Two reforms to the current law have been proposed to address this. Firstly, Huddleston would remove the requirement for grandparents (and extended family) to require permission from the court before making an application for a Child Arrangement Order (‘CAO’). Secondly, he proposes amending the Children Act to create a legal presumption that contact with grandparents is of benefit to the child, thereby placing the best interests of the child front and centre. This is designed to combat a significant risk when using the language of rights with respect to adults; that the wishes and interests of the child take a backseat and, in the worst scenarios, are used as a pawn in the dispute.
What then is the current position of grandparents or aunts and uncles and what steps are available to be taken?
Under the current law grandparents and other extended family members are treated on the same footing. If communication with the child’s parents has broken down and alternative dispute resolution is not an option, then as a last resort it is possible to apply to the court for a CAO.
First permission to apply for a CAO must be granted by the court. In some limited circumstances this step can be avoided and family members are entitled to apply for a CAO. This is the case where the applicant either has parental responsibility, the consent of those with parental responsibility or has resided with the child for at least 3 years.
If none the above apply then any relative wishing to make an application for a CAO must seek leave to do so. This added step ensures families are protected from interference and from the unnecessary distress or harm the judicial process can cause children and their carers. Therefore when assessing an application for leave the court will take into account the nature of the application, the connection of the applicant with the child and any risk that the application for a court order will harm the child.
If permission is granted then grandparents will commonly have to attend a compulsory Mediation Information and Assessment Meeting (‘MIAM’), designed to ensure that recourse to the court is truly a last resort.
Once these steps and screening processes have been fulfilled then, if the application is contested by the parents, a full hearing will usually take place. At this stage it can be very difficult to predict what a given Judge will decide. The paramount consideration of the court is always the welfare of the child. There currently exists no legal presumption that there should be contact between a grandparent and their grandchild. Instead it is considered that the court should only make an order where doing so is better for the child than making no order at all. Judges such as Thorpe LJ have, however, recognised the valuable contribution that grandparents can make to their grandchildren’s lives. For this reason it may well be possible to succeed and be named as a person with whom the child should have contact in a CAO.
It remains to be seen whether or not the proposed reforms are to be welcomed. The introduction of an automatic right to apply for a CAO might well be beneficial, saving both court time and money, given that permission is granted very frequently. Nevertheless it is important to keep in mind the purpose of the requirement; to protect families from unnecessary distress caused by vexatious applications. The second proposal – namely the amendment of the Children Act 1989 – should be considered with caution. Introducing legal presumptions can lead to myriad unintended consequences which could undermine rather than protect the welfare of the child involved.