There's no denying it, divorce and separation creates a raft of consequences. With the breaking up of familiar relationships children immediately have their lives rearranged, as one parent, typically the father, leaves the family home.
When it comes to who cares for a child, the mother automatically has parental responsibility from birth. Fathers will have parental responsibility if they are either married to the child's mother or are named on the birth certificate. Having parental responsibility typically affords you the right to maintain a relationship with children (as long as there are no injunctions or prohibitive orders in place to prevent contact) and separating parents are encouraged to reach an amicable agreement for child arrangements. These could include living arrangements, visiting schedules and other factors such as religious upbringing, schooling and contact at sensitive times such as birthdays and major holidays such as Christmas, Easter and the school holidays. Of course, it's not always as easy as that, and the difficulties faced by many parents are well documented.
If you are a step parent without parental responsibility, sadly you have no right to maintain a relationship with a child. However, you may be able to apply to the court for parental responsibility. A family law solicitor can help you make an application.
Grandparents and other relatives have no rights in this respect, so they may find that their relationship with a child is very quickly ended after divorce or separation. And it's a question family lawyers hear all too frequently: as a grandparent/step parent, "what rights do I have?"
No rights in law
Sadly, there is no law to ensure that grandparents or step parents, however close they have been to children, are able to maintain a relationship following a breakup. This is often heart-breaking, both for the adults and the children involved.
In many cases, one parent alone will hold all the cards about who spends time with the child and if the parent who lives with the child does not want a particular adult to have contact, it is not difficult for doors to be very quickly and very firmly shut.
Family law clients are often incredulous about the lack of rights in this type of situation. However, many lawyers and members of parliament agree that there should be no automatic rights for non-parent adults – instead, it is widely held that the rights should be afforded to the child i.e. if a child expresses a desire to see a grandparent, then their wishes should be heeded.
This very issue was raised in parliament (Access Rights to Grandparents 02 May 2018) by Nigel Huddlestone MP. The ensuing debate was passionate, emotional and peppered with heartfelt constituent stories. Mr Huddlestone called for an amendment to be made to the Children Act 1989 to enshrine in law the child's right to maintain a relationship with grandparents by adding the words "and extended family" or "and any grandparents" to the section on parental involvement in relation to the welfare of the child.'
Unfortunately, apart from the then Parliamentary Under-Secretary for Justice (Lucy Frazer) saying that there is a clear need for the system to work better and that she was keen to "look into how we can improve it", no firm movement on reform has since occurred in the year that has passed.
The current legal landscape
As it stands, as a grandparent or step parent who wants to see a child the only legal recourse is to apply to the family court for a child arrangements order – this is a long, potentially stressful and costly procedure which offers no guarantees of a successful outcome. The process is described below, but before considering seeking such an order, a first logical step is to seek mediation, in fact some courts will look dimly on an application for an arrangements order if mediation has not been attempted.
Family lawyers have an ethical duty to uphold the welfare of children involved in all cases and, ultimately, to be mindful of any family court rulings when deciding whether an application for a child arrangements order is suitable. The stark reality is that any adult who does not have parental responsibility for a child must prove to the court that the child will suffer if the relationship is not maintained.
This is not always as easy as proving that the adult's life will be harmed, and, sad as this may sound, the court will not be concerned with anybody's welfare but the child.
Mediation for grandparents and parents
When children are involved in a family dispute between adults, mediation is the preferred method for first-stage resolution and should certainly be considered before redress to the court. It is voluntary and confidential and its purpose is to resolve conflict so that the parties involved can reach agreement. If, at a later date, an application is made for a court order there must be evidence that, at the very least, a Mediation Information and Assessment Meeting (MIAM) session has been undertaken.
When the sessions begin, the parties will meet with an impartial, trained mediator in a safe, neutral place so that options can be investigated and researched. Mediators do not tell participants what to do, rather they help the parties discuss options and reach an agreement. While having a solicitor present is not necessary – and can sometimes feel antagonistic to the parent(s) – taking legal advice before commencing mediation sessions could be useful.
Outcomes of mediation are not legally binding or enforceable. If a parent agrees to visitation rights during mediation, they are not obliged to, and no one can make them, uphold the agreement. However, research published in 2018 in respect of family mediation has shown that whole or partial agreements are reached in 70% of cases. And according to National Family Mediation, an agreement made through mediation is more likely to "last longer and have better outcomes for all involved".
Typically, at the end of mediation, the parties will have an Outcomes Statement or Memorandum of Understanding written up, and this can be drafted into a consent order by a family solicitor if a court application is made at a later date.
Seeking a Court Order
According to Lucy Frazer, around 2,000 grandparents each year seek a child arrangements order through the courts. During the May 2018 debate she detailed how the system works and what types of contact can be arranged through a court order – these include face-to-face visits, overnight stays, if appropriate, and also contact via other means such as emails, telephone calls and letters. The court has flexibility about the terms, but whether an order will be granted depends on a variety of factors.
Firstly, grandparents must apply for permission (leave) to apply for a court order. The court will consider the connection to the child, the nature of the application for contact and whether the application poses any potential harm to the child's welfare. The Children and Family Court Advisory and Support Service (Cafcass) may be required to write a report detailing the welfare implications and impact of the application and whether the continued opposition by the parent(s) with responsibility exposes the child to potential harm. Cafcass will talk to the child to understand their feelings and wishes. These reports can take around 12 weeks to be complete.
If the court grants leave, then an application can be made for a child arrangements order. However, it may be at least another month before the first court hearing. The legal process can be particularly daunting and family lawyers generally advise caution when approached about this route, particularly if the parent(s)' opposition to contact with the child is strong or vehement. However, in cases where the parent(s) can no longer care for the child appropriately, an application to the court either seeking a child arrangements order or parental responsibility (for step parents) may be the best method for ensuring the child's welfare and safety in the longer term.
It should be noted that there are different rules and legal procedures in Scotland and Northern Ireland, and any application to the court and further legal action will incur court costs and associated fees.
Choosing the right time to make decisions
At Oratto we know that thoughts about applying for a court order often come at meaningful and emotive times, such as birthdays and Christmas etc. During a period of estrangement from your grandchildren or stepchildren, thoughts of family can be particularly poignant and being denied time with loved ones at times which were previously meaningful and full of contact is particularly difficult. So much so that you may be spurred into action.
However, our best advice is to take time before you make a decision to undertake legal action. Be reassured that there are a number of support groups out there and that the Ministry of Justice is well aware of the seemingly unfair situation.
If you are being denied contact with your step child or grandchildren and have decided that you must take action, the member solicitors at Oratto may be able to help. We can help you find a family lawyer who specialises in this area of the law. Contact Oratto today, to see how we could assist you.