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There is often a question over who has parental responsibility of a child, especially where parents are unmarried or in same sex couple relationships.

What is parental responsibility?

Parental responsibility means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and their property by law. A person with parental responsibility can make decisions on behalf of the child for example in relation to the child’s accommodation, education and medical treatment.

Having (or not having) parental responsibility does not determine whether a person has an obligation to provide for the child financially from their own resources. For example, guardians have parental responsibility but do not have financial responsibility, while the child’s father may not have parental responsibility but does have financial responsibility.

When does parental responsibility end?

Generally it lasts until the child reaches 18 but it may come to an end sooner if the child is adopted or, if it was acquired as a result of a court order or a parental responsibility agreement, the court may bring it to an end.

Who has parental responsibility?

The birth mother (person who carried the child) automatically acquires parental responsibility. This includes a transgender man who gives birth to a child as they will be registered as the child’s mother on the birth certificate. 

Mother and father

If a child’s parents are married or in a civil partnership with each other when the child is born, both of them automatically have parental responsibility.

If the parents are un married, the father can acquire parental responsibility if he:

• Marries the mother or enters into a civil partnership with her.
• Enters into a parental responsibility agreement with the mother and files it at court.
• Obtains a court order granting it to him.
• Is named in a child arrangements order as a person with whom the child is to live. When the court makes a child arrangements order naming the father as a person with whom the child lives, it must also make a parental responsibility order.
• Is named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact and the court decides that it would be appropriate to make an order in his favour.
• Is registered as the child’s father on a birth certificate (register of births) in the UK on or after 1 December 2003. They must however be the biological father. Non-biological father’s will not automatically acquire parental responsibility by being named on the register of births.
• Becomes the child’s guardian.
• Adopts the child.

Parental responsibility for same sex couples

But what about parents who do not fall within the above categories, such as those in same-sex couples who have used a surrogate?

Two male parents

Where two male parents have a child born through surrogacy, then they may acquire parental responsibility by one of the following routes:

• If one of the male parents is the “biological father” and is subsequently named on the birth certificate then he, like other unmarried fathers, will automatically acquire parental responsibility.
• Two male parents may apply for a parental order from the court, which will reassign parentage to the intended parents after birth.

Two female parents

Where a child is born by fertility treatment given on or after 6 April 2009, they may have two female parents. The woman who carried the child is treated as the mother and has parental responsibility in the same way as any other mother.

A second female parent is treated in a similar way to a father. She has parental responsibility automatically if she was the mother’s same-sex spouse or civil partner at the time of the fertility treatment and consented to the treatment.

If she is a second female parent under section 43 of  Human Fertilisation and Embryology Act 2008 (HFEA), she can acquire parental responsibility in the same way as an unmarried father. Section 43 applies if she was not the mother’s same-sex spouse or civil partner at the time of the treatment, but at that time the two women consented in writing to her being the child’s second parent and the mother was neither married nor in a civil partnership with another individual who is treated as the second parent.

Step-parents and parental responsibility      

A step-parent can acquire parental responsibility for a child if they are married to, or are the civil partner of, a parent of the child who has it currently, and they do either of the following:

• Enter into an agreement with all parents who have responsibility and file it with the court.
• Obtain a court order giving them parental responsibility.

A step-parent can also obtain it in the same way a father can by being named in a child arrangements order as:

• A person with whom the child is to live. The court will automatically make a parental responsibility order in favour of the step-parent.

• A person with whom the child is to spend time or otherwise have contact but is not named as a person with whom the child is to live. In these circumstances, the court may provide for the step-parent to have parental responsibility in the order but the grant is not automatic.

When do others have parental responsibility?

An individual other than a parent can acquire parental responsibility for a child if they:

• Adopt the child.
• Becomes the child’s guardian.
• Obtain a child arrangements order naming them as a person with whom the child is to live.
• Obtain a child arrangements order naming them as a person with whom the child is to spend time or otherwise have contact but not the person with whom the child is to live, and the court decides to make a parental responsibility order in their favour.

A person may also have parental responsibility temporarily if he obtains an emergency protection order from the court to protect the child from significant harm.

What happens if those with parental responsibility disagree?

If more than one person has responsibility and there is a disagreement between them, it may be necessary to apply to the court for any of the following orders under Section 8 of the Children Act1989:

• A child arrangements order which regulates any of the following:
  • with whom the child is to live, spend time or otherwise have contact; and
  • when the child is to live, spend time or otherwise have contact with any person.
• A prohibited steps order – this is an application to the court for an order to stop someone from exercising their responsibility in a particular way, for example relocating with the child.
• A specific issue order – this is an application to the court which deals with something specific regarding a child for example what school they should go to.

How can Watson Morris help?

At Watson Morris we specialise in family law which includes parental responsibility in all different situations. For an initial discussion to see how we can help, at no cost or obligation, please contact us.

Not able to agree which school your children go to? Sometimes separated parents disagree when it comes to school choice for their children.

If you have parental responsibility for a child, you are entitled to be involved in the decision making on school choice and  other important decisions regarding their education.

Do I have parental responsibility?

A mother will always automatically have parental responsibility. If you are a father, you will only have automatic parental responsibility if you were married to the child’s mother at the time of the child’s birth or your name appears on the birth certificate. 

If you don’t automatically have parental responsibility, you can obtain it by entering into a parental responsibility agreement or you can apply for a parental responsibility order through the court.

Without parental responsibility of the child, you will not be entitled to be involved in the decision when it comes to school choice.

What are the options for parents who disagree on school choice?

When separated parents disagree on school choice, they could try the following:

1. Try and reach an agreement: Discuss your concerns and the options for different schools directly with each other to see if you can reach a mutually acceptable decision. If you can agree, then you can simply go ahead with the change.

2. Mediation: You can attend family mediation to discuss your child’s education and school options with the help of an experienced mediator. If you are uncomfortable meeting with one other in the same room or there are safeguarding concerns, you can consider using shuttle or hybrid mediation.  You may also want to consider child inclusive mediation so that your children are directly involved and can have their wishes and feelings considered.  

3. Collaborative law or lawyer supported discussions: Using the collaborative process you will both appoint your own collaboratively trained lawyers and you and your lawyers will meet to work through the issues between you. 

You can also instruct a family lawyer to help you negotiate on school choice with the other parent or their legal advisor to see if you can reach an agreement.

4. Court application: The last resort for parents who disagree on school choice for their children is to make an application to court for one or both of the following:

• Specific Issue Order: This is an application to the court which deals with something specific regarding a child, which can include deciding on which school the child attends.
• Prohibited Steps Order: This is an application to the court for an order to stop someone from exercising their parental responsibility in a particular way. It can therefore be useful for a parent who thinks that the other parent is going to move their child to another school without their consent. You can ask the court to make an order to stop this.

5. Arbitration: By agreement you can select a judge or experienced barrister to make a binding decision for you. Arbitration is a direct alternative to court and will allow you to resolve an issue with your children’s schooling without the delay of the court process.

How does the court or arbitrator decide what orders to make?

Section 1 of the Children Act 1989 contains the statutory criteria for determining any question with respect to the upbringing of a child.  Section 1(1) confirms that the child’s welfare shall be the court’s paramount consideration. 

Section 1(3) contains a checklist of factors the court should have regard to.   This is known as the ‘welfare checklist’ and will require the court or arbitrator to consider:

• The ascertainable wishes and feelings of the child;
• The child’s physical, emotional and educational needs;
• The likely effect of any change in circumstances;
• The child’s age, sex, background and any characteristics which the court considers relevant;
• Any harm which the child has suffered or is at risk of suffering; and
• The ability of each parent of meeting the child’s needs.

The court will not consider an application unless you have attempted mediation or you fall into one of the exemption categories. For a detailed overview of all the alternatives to court see our guide to dispute resolution.

guide to dispute resolution .

How can Watson Morris help when parents disagree on school choice for their children?

The team at Watson Morris can help you navigate the law around parental responsibility and your children’s  education and schooling. For an initial free no obligation discussion to see how we can help please contact us.

Divorce and mental capacity is a strong talking point within the industry.

The question sometimes arises in divorce cases as to whether one or both parties have the necessary mental capacity to take part in the proceeding. Issues surrounding mental capacity can often arise as a result of illness or injury.

What is mental capacity?

Under the Mental Capacity Act 2005, someone is capable of making their own decisions if they can:

• Understand the information they need to make their decision.
• Remember the information.
• Apply that information to making their decision using reasoning and analysis.
• Communicate what their decision is.

If someone is considered to lack mental capacity, it means they lack the capacity to make a specific decision on a specific matter or take a specific action for themselves. Capacity is related to the specific facts of the case and the decisions which must be taken. For example, a person can be considered to have capacity to decide that they want to be divorced or to make a Will but still lack capacity to understand the minutiae of their financial affairs and require assistance.

Legal position on divorce and mental capacity

The legal position when it comes to divorce and mental capacity is that a party is assumed to have capacity unless it is established that they lack capacity.

In the context of family proceedings, capacity may be relevant as to both capacity to litigate and to compromise proceedings. This includes to agree the terms of a consent order. Capacity includes having a clear understanding of how the proceedings are to be funded, the prospects of success, the risk of a costs order, the need to give proper instructions and to approve a compromise. In a leading case on this subject the court ruled that an agreement and subsequent consent order made by a party who was in fact incapacitated will not be valid and should be set aside.

In divorce cases where there are concerns as to the mental capacity of a party who is represented, the first step will be to raise that possibility with the party’s legal representative and if necessary, draw any concerns to the attention of the court and seek directions.

Under English law a person who lacks mental capacity is a protected party and must have a litigation friend to conduct proceedings on their behalf. A litigation friend will normally be a deputy appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity in relation to their personal welfare or property and affairs.

Who can be a litigation friend when mental capacity affects divorce?

If there is no deputy another person may act as a litigation friend if that person:

• Consents to act.
• Can fairly and competently conduct proceedings on behalf of the protected party.
• Has no interest adverse to that of the protected party, and
• Undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right they may have to be repaid from the assets of the protected party. 

Any person wishing to be appointed as a litigation friend (other than a deputy appointed by the court of protection) must file a certificate of suitability in a standard court format stating that they satisfy the conditions specified above.

If a party lacks mental capacity, they will need someone to help them to make decisions during the divorce process and to help when giving instructions to their solicitors. This is the role of the litigation friend who’s duties to the protected party are to:

• make decisions in their best interests
• do everything you can to tell them what’s happening in the case and find out their wishes and feelings
• talk to their solicitor about what’s happening, get advice from them and give instructions to them in the other person’s best interests
• pay any costs ordered by the court

Is expert evidence of mental capacity required during divorce proceedings?

An assessment by a doctor or medical professional is often required to assess a person’s mental capacity to give instructions to a solicitor and conduct legal proceedings.

If there is uncertainty as to whether a party has mental capacity, we as lawyers will need to clarify the issue of capacity urgently. This usually results in an expert medical report being obtained before the divorce can proceed. Whilst capacity can fluctuate, usually where someone is suffering from an illness, such as Alzheimer’s for example, it is probably unlikely that they will regain capacity. The medical expert will be asked to advise whether in their opinion the loss of capacity is permanent, temporary or relates to some decisions but not others.

You can apply to be a litigation friend by filing a certificate of suitability with the court. This must be served on any appointed deputy, any attorney with a lasting power of attorney or enduring power of attorney, the carer of the adult you want to be litigation friend for and on the ‘protected party’ themselves.

How will the lack of mental capacity affect the divorce proceedings and financial settlement?

The marriage may not in fact be at an end where one party lacks capacity, but the other party may simply want to protect their assets. They may therefore choose not to obtain a divorce and instead apply for a judicial separation which would mean a financial settlement can be achieved without actually ending the marriage. However, in these circumstances, parties need to be alive to the fact that they cannot obtain a complete clean break or deal with pensions by way of a judicial separation and would instead need to get divorced to achieve this.

A person who lacks mental capacity due to illness or injury, may have increased income and capital needs due to the need to engage professional carers or meet residential care home fees. These costs will need to be carefully considered within any negotiations leading to a settlement. They may also lack any capacity to support themselves through employment which is also a relevant consideration. If financial resources are tight, these factors may well justify a departure from the court’s equal sharing principle in favour of the protected party.

How Watson Morris can help with divorce and mental capacity

Divorce is difficult for anyone, but in circumstances where one party lacks mental capacity these concerns can be exacerbated.

For the team at Watson Morris Family Law LLP, the wellbeing of our clients and their family are our first concern. We will have these practical and emotional considerations at the forefront of our minds when one of the parties lacks mental capacity during divorce.

For an initial discussion to see how we can help, at no cost or obligation, please contact us.

You should not take copies of your spouse’s confidential documents following separation. What is ‘confidential’, however, is sometimes not clear.  

Historic self-help remedy – why parties may want to take copies of confidential documents.

In the past, when one party feared that the other will not cooperate with disclosure or suspects that they will attempt to hide or move assets, parties had a ‘self-help’ remedy. 

The family court would not penalise the often financially weaker party for searching their spouse’s personal and private documents to uncover the true position. This was on the basis the documents they wanted to rely on were copied and immediately returned to their spouse or their solicitor.

The information contained in the documents, even those wrongfully taken, could be admitted in evidence because of the overarching duty on the parties to give full and frank disclosure. All that changed when the Court of Appeal handed down its landmark judgment in Imerman v Tchenguiz [2010] EWHC Civ 908 (Imerman case).

What is the position today on taking copies of confidential documents following separation?

It is a breach of confidence to examine without the owner’s consent, make, retain or supply copies to a third party of confidential material belonging to another person.

Anybody doing so risks both criminal and civil sanctions and the court may restrict the use of such information as evidence. Parties also have a right to a personal and individual private life under the Human Rights Act 1998

Therefore, you should not take copies of your spouse’s confidential documents following separation.

What is a private or confidential document?

There is no clear guidance on when a document is confidential. Confidentiality is not defined and is therefore a matter of fact and circumstance in each case. Communications and documents about a person’s private life, including personal finances and business dealings will be considered confidential. This will include bank statements, correspondence relating to business or personal finances, and personal documentation such as diaries. 

Confidentiality does not apply to documents regarding joint assets. You are therefore able to access and look for documents relating to joint assets; for example, statements of joint accounts or a joint mortgage. You have the right to locate these documents and forward copies to your solicitor. 

In the Imerman case the court took the view that confidentiality can be waived if confidential documents are left available to be seen by others, for example, if left lying around the matrimonial home. However, if you know that your spouse would not consent to a document being read, then it is safest to assume that it is confidential and to seek advice.

Confidentiality is not dependent upon locks and keys or the electronic equivalent and therefore it does not automatically mean that, because a document is not contained within a locked filing cabinet or a password-protected computer, the document can be accessed and copied. 

The key question when assessing whether or not a document could and should be accessed is: ‘would your spouse consent to these documents being accessed and copied?’. If the answer is no, it is likely that the document is confidential.

Self-help becomes self-harm

Parties no longer have a ‘self-help’ remedy and instead could be harming their case if they do not follow the correct procedures.  Not only could you be prevented from relying on the information, you may also create a professional conflict with your legal adviser preventing them from continuing to act for you and you may even be committing a crime. 

If you suspect your spouse will not comply with the duty to provide clear financial disclosure it is essential to take professional advice before trying to access or take copies of copy confidential documents.

How Can Watson Morris Help

The team at Watson Morris Family Law can help you navigate the law on taking copies of confidential documents following separation.  For an initial no obligation consultation please contact us.

Financial disclosure in divorce; Parties going through a divorce are under a duty to provide full, frank and clear financial disclosure. 

What is financial disclosure in divorce?

Financial disclosure in divorce is the process of giving your spouse, and the court, full details of your personal financial circumstances and your future needs and resources.

Why is financial disclosure necessary in divorce?

Financial disclosure is usually the first thing a family lawyer will ask their client to provide, as they will be unable to advise properly about the likely outcome of their client’s case without having a full picture of where both parties are placed financially. The court will also need full disclosure to consider how to distribute the parties’ assets and income.

How can I provide financial disclosure?

Financial disclosure can be undertaken on a voluntary basis or by directed by the court following the issue of a financial remedy application. If a financial remedy application has been issued the court will direct you to complete a financial statement Form E.  You must attach to Form E documents such as wage slips, bank statements, valuations for property, mortgage statements, business accounts and pension valuations. 

Outside of court (where parties are having discussions between themselves, negotiating through solicitors, or using mediation), parties can agree to use Form E, or they can complete a shortened disclosure process using schedules of the Statement of Information Form D81. Form D81 doesn’t require any documents to be attached and simply sets out in summary format parties assets, liabilities and income.  THIs form must be filed with a consent order and provides a summary of the parties financial circumstances for the judge to understand the terms of their settlement and approve the consent order. 

What happens if my spouse fails to provide information about their assets or deliberately distorts their financial position?

It is possible to ask the court to reopen a case and make a new order if a court order or agreement reached within or outside court proceedings is later found to have been based on inaccurate information. Parties have a duty to provide full, frank and clear financial disclosure whether within the context of informal and voluntary discussions and negotiations or as part of financial remedy proceedings.

If a party is in breach of the duty, whether by failing to disclose certain relevant facts and circumstances or actively presenting a false case then the court may make adverse inferences, set aside the substantive financial order, and can make a costs order against that party.  Giving deliberately false information in a Form E can also result in other sanctions such as criminal prosecutions and civil contempt of court as the Form E is verified by a statement of truth.

What happens if my spouse tries to hide assets?

You can apply to the court for a search order or freezing injunction if there are concerns regarding the dissipation of assets, concealment of information or destruction of documents. You would need to prove that the other party has acted in this way with the intention to defeat financial remedy claims.

A search order allows one party to enter premises to search and remove evidence before the other party has an opportunity to destroy the evidence.  A freezing injunction prevents the suspected party using their assets such as money in a bank account.

If you think your spouse may be acting dishonestly you need to act quickly to obtain the permission of the court to search for their confidential documents or freeze their assets. However, the cost of applying for and carrying out such an order must be balanced against the potential benefits, and it is important to discuss these considerations carefully with your legal adviser before proceeding.

When does the duty to provide disclosure end?

The duty is ongoing and only ends once the court has made a substantive order. This means that both parties will need to ensure that their disclosure is up to date and any material changes to their financial information or personal circumstances (for example, an intention to cohabit, remarry or form a civil partnership) must be disclosed.

The question sometimes arises in a divorce as to whether one or both parties have mental capacity to litigate. If a party lacks mental capacity, it is possible to divorce but they will need someone (a ‘litigation friend’) to make decisions for them during the divorce process. There may be reasons why parties may choose not to divorce in these circumstances which are explored below.

Who can be a litigation friend?

Someone may already be appointed as a power of attorney or there may be a court-appointed deputy who could become the litigation friend but it can be a family member or friend if they are the best person. 

The litigation friend must:

• Consent to act;
• Be able to fairly and competently conduct proceedings on behalf of the protected party;
• Have no interest adverse to the party lacking capacity; and 
• Agree to pay any costs which the protected party might be ordered to pay, subject to the right to recover from the protected party.

Is expert evidence required?

If there is a question mark over whether a party has capacity, we as lawyers will need to clarify the issue of capacity urgently, which usually results in an expert medical report being obtained before the divorce can proceed. Whilst capacity can fluctuate, usually where someone is suffering from an illness, such as Alzheimer’s for example, it is probably unlikely that they will regain capacity. We always need to be alive to the possibility of fluctuation when acting for such clients. We will also seek confirmation as to whether capacity has been permanently lost in the expert advice we obtain.  

How will the lack of capacity affect the divorce proceedings and financial settlement?

The marriage may not in fact be at an end where one party lacks capacity, but the other party may simply want to protect their assets. They may therefore choose not to obtain a divorce and instead apply for a judicial separation which would mean a financial settlement can be achieved without actually ending the marriage. However, in these circumstances, parties need to be alive to the fact that you cannot obtain a complete clean break or deal with pensions by way of a judicial separation and would instead need to get divorced to achieve this. 

A person who lacks capacity, for example with Alzheimer’s, may have increased income and capital needs due to carers or residential care home fees. This will need to be carefully considered when discussing settlement. 

Divorce is difficult for anyone but in circumstances where you have one party who lacks capacity the normal concerns can be exacerbated for spouses who may feel guilt due to them divorcing their spouse for reasons beyond that persons control, such as an illness. 

The team at Watson Morris Family Law  will have these practical and emotional considerations at the forefront of our minds when acting for or against clients who lack capacity.

Whilst divorce rates for younger couples seems to be on a decline, the rate of divorcing later in life is on the rise with the divorce rates for those 65 years and older having tripled since 1990. 

There are various reasons for later life divorces such as growing apart, children having left home, retirement, or age-related illnesses, but a common factor is because they do not want to start the last chapter of their life unhappy. Divorce seems to have become more socially accepted and changes in lifestyles and opportunities mean couples feel less obliged to stay together in an unhappy marriage. 

What are the challenges of divorcing later in life?

Whilst there are unlikely to be child-care or child support issues, there are many unique challenges of divorcing later in life.

Roles and responsibilities – Unlike many younger couples, the older generations tend to adopt more traditional roles in the home and in the marriage, often meaning the husband is the breadwinner and the wife has sacrificed her career to care for the family and home. This typically means the husband tends to have earned more, is more likely to have a pension and may feel that he has contributed more financially, whilst the wife in contrast may have very little in savings, investments or a pension and could feel financially vulnerable if they divorce.  

Limited knowledge – Divorcing later in life can mean the wife sometimes has limited knowledge of the household finances and her income may only consist of an allowance from her husband. This may increase the wife’s worries of how she will survive if they divorce. In terms of ongoing maintenance, her needs would need to be considered in detail against the husband’s ability to pay. 

Pensions – The older the couple, the more likely they will have concerns regarding their pension provision and how they will manage in retirement. The pension can be shared and will need to be valued along with the other assets and then a decision made about how the pensions will be split. 

Watson Morris on divorcing later in life

Whether you are divorcing later in life or at any age you should seek legal advice. 

If you are in the later years of your life, it is even more important to ensure your financial future is protected and you can meet your needs (capital and income) in your retirement. 

The team at Watson Morris Family Law are experts in financial settlement on divorce and pensions, contact us for more information.

  

What are grandparents rights when parents divorce?

The breakdown of a relationship between a child’s parents can sometimes have a devastating impact on the wider family. Grandparents may find the time they previously enjoyed spending with their grandchildren becomes restricted, causing a devasting impact on both the child and grandparent.

Whilst grandparents do not have automatic rights they can make an application under the Children Act 1989 to ask the court to make an order. In this article we explain the law and procedure involved.

Grandparents rights when parents divorce: What orders can the court make? 

Section 8 of the Children Act 1989 (CA 1989) allows grandparents to obtain a ‘child arrangements order’ (CAO) regulating when and with whom the child shall live with, spend time with or otherwise have contact. 

Before applying for a section 8 order the court will expect parties to attempt to resolve their dispute using mediation or other alternative dispute resolution options. Unless an exception applies, an applicant will need to attend a Mediation Information and Assessment Meeting (MIAM) before applying to the court. 

What is the application process for grandparents rights when parents divorce?

In most cases, grandparents will need to seek permission from the court before applying for a section 8 order. Permission is not however needed if: 

• they are the child’s guardian, special guardian, or if they have parental responsibility;
• they are already named on a CAO as the person with whom the child will live;
• they are the person with whom the child has lived for a period of three years (not necessarily continuously but over the last five years);
• they have the consent of each person named in the CAO as the person with whom the child is to live;
• they have the consent of the local authority where the child is in local authority care; or
• they have the consent of each person with parental responsibility for the child.

It is not necessary to attend a MIAM before making an application for permission. If permission is given, there is then a requirement to attend a MIAM before making the section 8 application.

What does the court consider when deciding whether to grant permission to apply?

In deciding whether to grant leave, the court will have particular regard to:

• the reasons behind the proposed application;
• the grandparent’s connection with the child; and
• any risk there might be of the grandparent disrupting the child’s life to such an extent that they would be harmed by it.

This is not an exhaustive list and other factors are likely to be relevant, including the child’s wishes and feelings. 

What does the court consider when deciding whether to make a section 8 order? 

Thechild’s welfare is the paramount consideration. Under section 1(3) of the CA 1989 the court must apply the welfare checklist. This includes: 

• the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• the child’s physical, emotional and educational needs;
• the likely effect on him of any change in his circumstances;
• the child’s age, sex, background and any characteristics of his which the court considers relevant;
• any harm which he has suffered or is at risk of suffering;
• how capable each parent and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and
• the range of powers available to the court under the CA 1989 in the proceedings in question.

There is no presumption that having contact with a grandparent is in the child’s best interest. This doesn’t however mean that the court doesn’t recognise the value of the relationship. The court recognises the value to a child of contact with extended family member and in particular grandparents. 

The burden will initially be on the grandparent to demonstrate contact will be in the child’s best interests. If the application is opposed, the burden shifts to the opposing party to show why the contact should not take place. 

Watson Morris on grandparents rights when parents divorce

At Watson Morris, we work in all areas of family law and can support clients who require more information on grandparents rights when parents divorce. Contact us for more information.

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