Sadly, the relationship between grandparents and their grandchildren is a common casualty of separation and divorce.
Whilst there are no “official” statistics, various polls over the years have suggested that as many as a third to a half of grandparents lose contact with their grandchildren in such circumstances. A common query in Family Law is what rights grandparents have to pursue contact.
In England, as set out further below, there is no automatic legal protection of the grandparent/grandchild relationship, which often comes as a surprise. Equally, however, it is important to note that it is possible for grandparents to make a court application, it is simply that the application has some differences from an application made by a parent.
For Family Law practitioners in any jurisdiction, it is always a worthwhile exercise to observe and compare the prevailing trends, concepts and developments abroad. This can provide useful context to ensure the legal position in the jurisdiction within which we practice – England and Wales - is up-to-date in its understanding of children’s welfare, and to identify areas for reform.
Last week, the Supreme Court in Italy made a landmark ruling in respect of grandparents’ rights that has sparked debate amongst family lawyers and has again brought into focus the issue of how the law should treat the relationship between grandparents and grandchildren.
The decision
In Italy, the starting position is rather different from here. Reports suggest that not only is a child's right to a relationship with their grandparents protected by law, grandparents are also able to apply for orders stating that the withholding of that relationship is unlawful and contrary to the child's welfare. This gives grandparents in Italy the ability to assert their own right to spend time with their grandchildren.
In this case, the children’s paternal grandparents and uncle had sought orders to spend time with the children, as the parents would not allow it. The grandparents were successful in obtaining orders to spend time with the children. (In England & Wales, this would be equivalent to a “spends time with” Child Arrangements Order). The Court is observed to have given stark warnings to the parents as to the risks of psychological harm to children being deprived of a relationship with wider relatives.
The parents appealed that decision, reportedly arguing that the children simply did not want to participate. The Court concluded that they are unable to be forced to do so – particularly given their near adolescent ages. The Court, therefore, ruled that the contact between the children and the grandparents need not continue. Commentators observe that this is a particularly significant decision in Italy, where the bonds between children and their grandparents – in particular their grandmothers, or ‘nonnis’ - is fundamental to the culture.
Points of interest for Family Law in England & Wales
There are a number of overriding points of interest emerging from the Italian Court’s decision.
- In England & Wales, grandparents do not have an automatic right to spend time with their grandchildren, or to make decisions on their behalf.
This is not to say that there is no recourse for a grandparent who feels that a child is missing out on spending time with them. Grandparents will need to seek permission from the Family Court in order to make an application for a Child Arrangements Order in respect of their grandchildren. Permission will be given upon consideration of the grandparents’ relationship with the child, the nature of the application, any harm that could be caused to the child and the impact that contact would have on the rest of the family. Once permission is granted, grandparents would still need to satisfy the Court that any orders they sought were in the children’s best interests.
This position contrasts with that of parents, for example, who would not have to take the additional step of “permission” in order to proceed with an application and also start from a presumption that it is in the child’s interests to have a relationship, unless risks to their welfare are shown.
In this way, the Court in England & Wales endeavours to ensure that children’s best interests, welfare, rights and needs are kept at the forefront.
- A fundamental factor in the Italian case was reported to be the resistance of the children to the arrangements to spend time with their relatives. They simply did not want to and, the Court felt, they could not be forced. In England & Wales, decisions are made in accordance with a child’s best interests, with reference to a checklist of factors.
The children’s wishes and feelings are one of these factors but are not determinative. They need to be weighed up as against any other competing factors and in any event are only interpreted in light of their age and understanding.
So, whilst their wishes and feelings will become a weightier factor as a child matures, it will generally always remain part of a wider balance.
There is no standard order that is made in favour of grandparents, and if the court grants permission for the application to be made, what level of contact is provided for will always depend on the facts of the specific case.
If you are involved in a family dispute involving grandparents in England & Wales, please do not hesitate to contact a member of our Family Law Team.
