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Should there be a legal presumption in favour of grandparents having contact with their grandchildren upon divorce? This is the tricky question that parliament now has to grapple with, but surely the answer is a resounding yes.
Many couples don’t realise that the grant of a decree absolute can often be just the beginning of their spousal battle leading to years of arguments over the distribution of the family’s financial assets and arrangements concerning children. Both parents will come out of the other end, happy or not, with at least some contact with their child unless it has been determined that the child is likely to be caused harm through contact with the relevant parent or that it is not in the child’s welfare to have contact; both of these findings are high thresholds that can only be found following legal proceedings. Grandparents, despite often playing a key role in the children’s lives up to the point of divorce, have no such right and are forced to apply to the Family Court for a Child Arrangements Orders if one parent prohibits their contact with a grandchild.
This may soon change following a recent agreement by a cross party of MPs to consider amending the Children Act 1989 (“the Act”), the legislation that governs how decisions are made in relation to children, to provide for a presumption in favour of grandparents remaining in contact with grandchildren following divorce.
Advocates of the amendment say that grandparents play an equally important a role in the upbringing of children as their parents do, often taking on a caring role for the children and giving parents respite when required. Furthermore, that the bond between grandparents and grandchildren has been shown to be akin to that of parents and children and therefore, why should this equivalent emotional attachment not be enshrined in law.
Those opposing the amendment may seek to argue that parents are those with the legal right to meet a child’s needs and that the consistency of the relationship between a child and its parents will impact the child’s behaviour growing up, with no evidence showing that grandparents have the same influence. Accordingly, a relationship between a child and its parents needs to be maintained whereas that of a grandparent and grandchild does not.
Whatever the view held, in the majority of families grandparents play a significant role in the upbringing of their grandchildren and, from a common sense perspective alone, it seems correct that grandparents should be entitled to see their grandchildren. Of course, the one caveat to this is that grandparents should only be entitled to see their grandchildren if it is in the welfare of the child see their grandparents. If seeing the grandparents is likely to harm the child’s welfare then, quite rightly, contact should be precluded.
In the Family Court, the body that considers applications for CAOs made by aggrieved grandparents, as with any other application concerning a child, the primary consideration is whether or not granting the order sought is best for the welfare of the child. Family Judges are used to having to make such determinations in respect of parents and therefore, I see no reason why they cannot be tasked with making such determinations in respect of grandparents. Whilst Parliament will have to consider the benefits and disadvantages of the proposed amendment, in my view common sense should prevail; we have one of the best judiciary’s in the world, they should be allowed to do their job in applying the principles of the Act and I see no reason why Family Judges will be unable to apply the principles they already apply to parents, to grandparents.
Sinclairslaw is one of the leading family law firms in Wales and is able to deal with any query arising from a separation or divorce. Feel free to contact our family experts on email@example.com or contact Suzanne Thomas, Head of Family Law, on 02920 388 398.