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.

Written by Faye Wright

October 8, 2022

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