This article aims to shed light on the legal position of grandparents when they seek contact with their grandchild. The focus will be on applications made within the context of private law proceedings. Unlike parents, grandparents do not have an automatic right to apply for a Child Arrangements Order. Instead, they must first apply for leave from the court under Section 10(9) of the Children Act 1989. Section 10(9) sets out the matters the court must consider when deciding whether to grant leave:
(9)Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—
(a)the nature of the proposed application for the section 8 order;
(b)the applicant’s connection with the child;
(c)any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
(d)where the child is being looked after by a local authority—
(i)the authority’s plans for the child’s future; and
(ii)the wishes and feelings of the child’s parents.
This framework demonstrates that while grandparents may face additional criteria, the law provides a clear route for them to seek contact where it is considered to be in the child’s best interests.
(a)the nature of the proposed application for the section 8 order;
Under the first limb of Section 10(9) of the Children Act 1989, the court must consider the application put forward by a grandparent. As explained in Re A (Section 8 Order: Grandparent Application) [1995] 2 Flr 153:
“In considering s 10(9) the court has to have regard not only to the welfare of the child but also the prospects of success of any application that is made if leave is given”.
The proposed application is therefore not assessed on the basis of what the grandparent personally believes to be appropriate, but on whether the application is realistic and aligned with the child’s best interests. If the application does not consider these points, then the prospect of success of any application would be reduced.
One aspect that the court will consider when looking at the nature of the proposed application, is the nature and frequency of the contact being sought. It must be an application where the grandparents have given thought to the impact the contact may have on the child and what type and level of contact would be in their best interests. As highlighted in Re W (Contact: Application By Grandparent) [1997] 1 Flr 793:
“Grandparents play an important role in children’s lives, especially young children, and their influence is extremely beneficial, provided it is exercised with care and not too frequently”.
Grandparents should only seek leave from the court if their purpose is to establish meaningful, child-focused contact, with a genuine belief that this serves the child’s best interests. It is therefore important to consider which form of contact is sought by a grandparent, its justification and the likelihood of it being successful.
(b)the applicant’s connection with the child;
Section 105(1) of the Children Act 1989 recognises a biological grandparent as a relative of the child. However, to satisfy Section 10(9) of the Children Act 1989, the court places particular importance on the nature of the grandparent’s connection with the child when deciding whether to grant leave. This includes the frequency of contact between them.
The child’s welfare and interests are always the court’s paramount consideration and therefore this will always be considered when an application for leave is made to the court. The grandparents will have to demonstrate their connection with the child is meaningful and holds significance. In such circumstances, severing that connection may be seen as harmful to a child and thus maintaining contact is likely to be seen as consistent with the child’s best interests.
c)any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it
The court recognises that the litigation process itself may sometimes place strain on a child, for example, if they are required to meet with a social worker. However, this is not automatically viewed by the court as harmful, rather it is a factor the court must weigh when deciding whether leave should be granted. Ultimately, if the contact being sought would disrupt the child’s life to such an extent that it harms their welfare, the application must fail.
An exception
An exception to the general rule is found under Section 10(5)(b) of the Children Act 1989. This provision states that where a child has resided with a person for at least three years, that person may apply for a Child Arrangements Order. Accordingly, if a grandchild has resided with their grandparent for a minimum of three years, they may apply for a Child Arrangements Order without leave from the court.
Under Section 10(10), ‘the period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application.’
The team at Becket Chambers frequently take instructions in relation to Family Matters. Should the reader have any questions, or is looking for representation, please do not hesitate to contact us at clerks@becket-chambers.co.uk
