Can I Gain Access To My Grandchildren?

The role grandparents play in the raising of their grandchildren is substantial, especially following parental separation, where the parent with primary custody needs to be able to work and needs extra support. It is now estimated that over five million grandparents take on childcare responsibilities, according to Age UK. Ultimately, being able to see your grandchildren develop and flourish and playing a role in their day to day life provides enormous benefits for both of you. But what happens if you lose access to your grandchildren, perhaps following an acrimonious parental divorce or separation?

Do grandparents have a right to see their grandchildren?

Unfortunately, grandparents do not have an automatic right to see their grandchildren. However, they do have legal options available in this situation under the Children’s Act 1989 (CA 1989). Section 8 of the CA 1989 provides three main ways, referred to as ‘section 8 orders’ in which this can be achieved, as follows:

Child Arrangement Orders (CAOs)

A grandparent can apply to a family court to have a CAO (previously known as ‘residence orders’ or ‘contact orders’) granted to gain access to their grandchildren. As the CA 1989 states, a CAO is an order that regulates arrangements for:

(a) who a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person.

Prohibited steps orders (PSO)

On application, the courts may agree to grant a PSO to prevent a parent, or another person with parental responsibility, from taking certain actions. For example, if there is a genuine concern that the parent may take a grandchild out of the country indefinitely, the courts may issue a PSO to prevent this from happening.

Specific Issue Order (SIOs)

An SIO is an order issued by the court providing specific direction on a particular question in relation to the parental responsibility for a child. This may be, for example, be guidance on whether a child should receive medical care or where they should attend school. 

Can I apply to become a special guardian?

It is possible to apply for a Special Guardianship Order (SGO), whereby you take over the parental responsibility of a child, in certain circumstances. This is different from adoption as the child still has regular involvement and contact with their parent, but the person with the SGO has the final say on parental matters. You can apply for an SGO without first requesting permission from the court if:

• you are already the child’s legal guardian
• the child lives with you because of a child arrangements order
• the child has lived with you for 3 of the past 5 years
• you’re the child’s relative or a foster parent, and the child has been living with you for at least 1 year
• you have the agreement of anyone named in a child arrangements order as someone who the child will live with
• you have the agreement of all the people with parental responsibility for the child
• you have the agreement of the local council, if the child is in care

If none of the above, you can still apply to the family court for permission to request an SGO.

How do I apply for a court order to gain access to my grandchildren

Grandparents, brothers, sisters, uncles, aunts, and step-parents are able to request a section 8 order from the family courts. To do so, you will first need to attend a Mediation Information and Assessment Meeting (MIAM). This is required by the Children and Families Act 2014 and is intended to see if your matter can be resolved outside of the court system through Alternative Dispute Resolution (ADR) methods, such as negotiation and mediation. If ADR is appropriate, an impartial negotiator or mediator will help you to come to an amicable arrangement with the person with parental responsibility. It is important to understand that you must attend a MIAM before you can apply to the family court for an order. ADR can be highly effective in resolving matters outside of the court system and can help preserve the existing relationship between the person with parental responsibility and the grandparent.

Once you have attended a MIAM, you can then apply online for a section 8 order on the government’s website.

To make your application, you will need the following information to hand:

• details of those with parental responsibility (e.g. date of birth and address)
• the child’s or children’s details
• solicitor details
• details of any previous family court cases
• signed document confirming MIAM attendance

Once you apply to the court for an order, the judge will look at factors such as why you have applied, your connection to the child, and whether there is any potential harm and disruption to the child’s life if it is granted. While the court understands the importance of the relationship between a grandchild and their grandparent, there is no automatic presumption that doing so is in their best interests. For this reason, making a strong and reasoned rationale for the granting of the order is imperative.

In conclusion

If you are considering seeking regular access to your grandchild in the form of a CAO or other preventative action in the form of a PSO or SIO, it is important to seek the guidance of a family law Solicitor. They will review your situation and recommend the best overall course of action. If ADR methods are not suitable or do not prove effective, your Solicitor will help to prepare a robust application on your behalf demonstrating the reasons and importance of putting in place the arrangement, and why this is in the best interests of the child.

For a free consultation regarding gaining access to your grandchildren, please call our understanding and caring family law team on 0208 300 6666.