The courts have long accepted that grandparents have an important role to play in the upbringing of children. Perhaps unfortunately however the Children Act 1989 does not give any particular contact rights or recognition to grandparents. The Act places every emphasis on what is in a child’s best interests which the courts are charged to promote but does little to ensure contact with grandparents following the breakup of the children’s parents. As a result almost half of children from broken homes lose contact with their grandparents.
Over the years a presumption has arisen that children are best brought up, whenever possible, by a natural parent. In the case of (Re B. ) the court stressed the importance of all the factors in the Welfare Check List set out in the Children Act which had to be considered. A presumption of living with the natural parents was a consideration but should not be over emphasised. Therefore where it can be shown that the best interests of a child is to live with grandparents (or to have regular contact with them), appropriate Orders will be made.
Grandparents must obtain the permission of the court before applying for a child arrangements order save where they have cared for the child for more than three years or all persons with parental responsibility agree. Whether or not leave will be given depends upon each individual case and there is no presumption in favour of an application by grandparents. This additional hurdle can deter some grandparents but should not be allowed to do so if the consequence is losing touch with their grandchildren. When deciding whether or not to give permission the court must consider the merits of the intended application and where it is obviously well founded and based upon what is best for the children, permission to proceed will usually be given.
Re B, mentioned above, was a case where a mother had been unable to cope with her child and the maternal grandparents had brought up the child for the past three years almost since birth. The father applied for residence. This application was refused by the Family Proceedings Court who saw no reason to change the existing satisfactory arrangements. On the father’s appeal to the High Court the appeal was allowed on the strength of the natural parent presumption. The grandparents then appealed to the Supreme Court. There their appeal was allowed and a residence order was made in their favour. It was held that decisions concerning who should bring up children must be firmly rooted in an examination of what is in the child’s best interests. No particular weight should be given to the natural parent as this is only one factor for consideration.
This decision removes the need for there to be a compelling reason to remove children from their natural parents and it only needs to be shown by grandparents that it is in their grandchildren’s best interests to have contact or an order for the children to live with them.
Although the current legislation does not create an insurmountable hurdle for meritorious cases, further support for grandparents is contained in the Government Green Paper ‘ Support for All — The Families and Relationships ‘. A number of the measures proposed are directed towards grandparents and to make it easier for them to apply for contact or the right to care for their grandchildren. The law could well be about to change in favour of grandparents and other carers of children.