Maintaining contact with grandchild after family breakdown

How can I maintain contact with my grandchild or stepchild following family breakdown?

The breakdown of a relationship between parents can have consequences far beyond the immediate family. Grandparents, step-parents and other relatives who have played a significant role in a child's life can find themselves excluded from that child's life with little warning and no clear understanding of their legal position.

We regularly meet grandparents and step-parents who are devastated after suddenly losing contact with a child they helped to raise. While many people assume there is nothing they can do, the law recognises the importance of these relationships and there are legal steps that can be taken to restore or maintain contact where it is in the child's best interests.

Children often benefit greatly from maintaining meaningful relationships with wider family members who have played an important role in their lives. Where those relationships have been disrupted, the Family Court has powers to protect and maintain them, were doing so serves the child's best interests.

Fortunately, the law provides a framework through which grandparents and step-parents may be able to maintain meaningful relationships with children following family breakdown. Understanding those options is often the first step towards finding a constructive solution for everyone involved, particularly the child.

Understanding Child Arrangements Orders

A Child Arrangements Order is an order made under the Children Act 1989 regulating arrangements for a child.  Although families and practitioners often use the word ‘contact’, the legislation does not use this wording; instead it is a ‘Child Arrangement Order’ that is made and can specify the details around who a child lives with and who a child spends time with.

The court focuses on what arrangements are in the child's best interests when making an order. Every decision made by the court will be directed towards promoting the child's welfare rather than meeting the wishes of any adult.

Grandparents

In many cases, a grandparent will first need to obtain the court's permission before making an application. However, there are some limited circumstances in which a grandparent may be entitled to apply without permission, including where particular statutory requirements concerning the child’s residence with them are met.

When considering whether permission should be granted, the court will consider matters such as:

• the nature of the proposed application;
• the grandparent's connection with the child; and
• whether the application could disrupt the child's life to such an extent that harm may result.

A close and meaningful existing relationship with the child may be an important factor when the court considers the applicant’s connection with the child, although permission is not automatic and each case turns on its own circumstances.

Step-parents

The position for step-parents will depend on the particular family circumstances.  Some step-parents are entitled to apply for a Child Arrangements Order without first obtaining the court’s permission.  For example, where the step-parent has lived with the child for three years, or the step-parent has acquired parental responsibility through agreement, adoption or a previous court order. 

Where a step-parent does not fall within one of these categories, they will need to seek the court’s permission before making an application. It is therefore important at the outset to establish whether permission is required.

When considering any application by a step-parent, the court is likely to examine:

• the length of the relationship between the step-parent and child;
• the extent of the step-parent’s involvement in the child's upbringing;
• the emotional relationship between the parties; and
• the likely impact on the child if the relationship ends.

Where a step-parent has effectively acted as a parent for a significant period, the court will often give careful consideration to preserving that relationship if doing so promotes the child's welfare.

What does the court consider when deciding these applications?

Many grandparents and step-parents are concerned about whether they will be viewed favourably by the court. In reality, the court is not concerned with rewarding or punishing adults. Its focus is entirely on the child's welfare.  When making decisions relating to children, the court applies a statutory welfare checklist contained within the Children Act 1989. This will take account of the following:

• The child's wishes and feelings - where appropriate, the court will consider the wishes and feelings of the child, taking account of the child's age and level of understanding. The views of older children may carry significant weight, although no child is given sole responsibility for determining the outcome.
• The child's physical, emotional and educational needs - the court will consider the child's overall needs and whether maintaining a relationship with a grandparent or step-parent contributes positively to their wellbeing and development.  A close and supportive extended family relationship can often provide important emotional stability, particularly following parental separation.
• The likely effect of any change in circumstances - the court will assess the impact on the child if contact is lost, reduced, introduced or increased.  Where a child has enjoyed frequent and meaningful contact with a grandparent or step-parent, the court will consider whether suddenly ending that relationship may have a detrimental effect.
• The child's age, background and personal circumstances - every child is different. The court will consider the individual characteristics, family background and circumstances relevant to that particular child.
• Any harm suffered or risk of harm - the court will give careful consideration to any harm the child has suffered or is at risk of suffering.  Where allegations of domestic abuse, neglect, substance misuse, inappropriate behaviour or other safeguarding concerns are raised, these issues will be investigated carefully before decisions are made.
• The ability of relevant adults to meet the child's needs - the court will also assess the ability of each relevant adult to meet the child's needs and support their welfare.  Importance is often attached to adults who are capable of promoting positive relationships and placing the child's needs above adult conflict.

The role of CAFCASS

The court may ask CAFCASS (the Children and Family Court Advisory and Support Service) to become involved. A CAFCASS officer will typically speak to the parents and applicant, depending on the child’s age and understanding they may speak to them also, and they will carry out what further safeguarding enquiries they deem appropriate.  This may include speaking to the child’s school for example.  The CAFCASS officer will then prepare a report with their recommendations for the court.

The recommendations made by CAFCASS can often play an important role in the outcome of proceedings, however the court is not bound by CAFCASS’s recommendation and will make their own decisions.

What types of contact can the court order?

A Child Arrangements Order can provide for various forms of contact. The court will select the arrangement that best meets the child's needs in the particular circumstances of the case.

• Direct contact - this involves face-to-face time between the child and the grandparent or step-parent.  This could be after-school contact, weekend contact, evening contact, or overnight contact. The frequency and duration of contact will vary depending on factors such as the child's age, needs, routine, and the nature of the relationship. 

• Indirect contact - a child arrangement order can provide for the child to have contact other than through face-to-face meetings.  Depending on the circumstances, arrangements might include telephone or video calls, messages, letters, gifts or cards. This type of order may be appropriate where a relationship is being re-established gradually; where safeguarding considerations mean face-to-face time is not presently appropriate; or, where geographical distance makes regular direct contact impractical.

Next steps

Where possible, grandparents and step-parents should attempt to resolve matters through discussion with the child's parents or carers.  Many disputes arise following relationship breakdown and can sometimes be resolved through improved communication and negotiation.  Family mediation can often assist parties in reaching practical agreements without the need for contested court proceedings.

An independent mediator helps the parties discuss arrangements and explore potential solutions.  In most cases, attendance at a Mediation Information and Assessment Meeting (MIAM) will be required before a court application can be issued.

Making a court application

If an agreement cannot be reached, an application may be made to the Family Court. One of our family law team can represent you during this process.  We will complete and file the application with the court office and represent you at any court appearance.  We can guide you on the best route for you and assist with any evidence that would improve your prospects.

How we can help

Although grandparents and step-parents do not always have an automatic right to seek contact, there are legal options available. Each case will depend on its own facts, with the child's welfare being the paramount concern for the courts.

Obtaining early legal advice can help you understand your position, explore alternatives to court and, where necessary, take prompt steps to protect an important relationship with a child.

For further information, please contact a legal adviser in our family law team at one of our offices – York, Selby, Malton or Pickering.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.