Senior Associate & Solicitor
Nelsons Solicitors
When two parents decide to divorce, there is of course a ripple effect on other members of the family, including children and grandparents. Rina Mistry, senior associate specialising in family law at leading East Midlands law firm Nelsons discusses the legal rights of grandparents, and the challenges that can come up during a parental divorce.
Grandparents play an important role in their grandchildren’s lives – they often act as secondary guardians, they may be involved in special occasions like birthdays and family events, and they can be a link to a grandchild’s traditional culture or religion.
Separation and divorce in any family is an unsettling and uncertain time, with potentially new living arrangements and changes to routines for children and other relatives.
There is often an assumption that grandparents have automatic rights to see their grandchildren, when unfortunately, this is not the case. The law does not give grandparents (maternal or paternal) any automatic rights to be in their grandchild’s lives. This means that if parents choose to keep their children away from grandparents, they are free to do so. This can have a significant impact on the grandparent-grandchild relationship.
Challenges
Grandparents may face a number of hurdles when navigating their grandchildren’s parents’ divorce. Communication may become more challenging, particularly between ex-spouses, which can make it hard to keep contact with grandchildren – especially those that are very young.
In more serious situations, there can be the issue of parental alienation – usually this happens when one parent intentionally tries to damage the relationship between the other parent and the children by speaking badly about them or enforcing negative views. This can also happen with grandparents, which can be traumatic for grandchildren who may have had a close bond previously.
Talking it out
Despite not having automatic rights, grandparents still have options available to them. The first and usually the most effective is to try resolving all issues between the adults, whether it is directly or via the mediation process.
The situation can vary from case to case; it may be that the relationship between the adults has broken down or the grandparents are concerned for the children, and in an attempt to intervene they are denied any further time with the grandchild.
If legal advice is needed, grandparents will always be asked whether or not they have attempted to speak with the parents of the child to try and resolve the issues and further consideration will be applied as to whether correspondence from solicitors may assist to resolve the issues amicably.
If an agreement cannot be reached and a referral to mediation has not yet been made, this will be the next step. Mediation is not only a better option to try and resolve the issues but also far more cost-effective than making an application to Court. Compulsory attendance will be needed at a Mediation Information and Assessment Meeting (MIAM). There are exemptions available, for example if the grandchild is at significant risk of harm, but in most cases, the Court will expect grandparents to attempt to resolve issues through mediation.
Court application
If mediation is considered inappropriate or is refused by the other party, then the only available option is making a formal application to Court to resolve the child arrangements. This is the last option most solicitors would advise, however, this may be the only available option if all else has failed.
As grandparents hold no parental responsibility, they will need to first ask the Court for permission before being able to make an application for a Child Arrangements Order. If the Court grants permission, then a formal application for a Child Arrangements Order can proceed. However, if the Court does not grant permission, progress would go no further.
Like all applications, the Court will consider each matter individually but must take into account the following:
- The nature of the application
- The applicant’s connection with the child
- Any risk of the proposed application disrupting the child’s life to the extent that they would be harmed by it.
If Court is the only option available, then it is highly recommended that you seek independent legal advice regarding your position and next steps.
Maintaining relationships
Whatever course of action is taken, respectful communication is highly encouraged throughout the process between not only parents but all family members. Not only does this support a more efficient process, but it limits the emotional impact on children and paves the way for better relationships in the future.
Grandparents should take the same approach to not speak negatively about either parent in front of their grandchildren and instead look to focus on their best interests and ensuring they feel cared for and supported.
For more information on grandparents’ rights during a parental divorce, please contact the expert family law team at Nelsons, by visiting www.nelsonslaw.co.uk/personal-legal-services/family-law-solicitors/children-law
About Rina Mistry
Rina Mistry is a Senior Associate in Nelsons’ expert Family Law team, specialising in complex Private Children Law and focusing on several niche areas. These include parental alienation, cross-border jurisdictional disputes, and cases involving serious allegations of harm. She also handles matters related to internal and external relocation, whether temporary or permanent and international child abduction. Additionally, Rina is experienced in private children matters where a child or parent is neurodiverse, surrogacy, applications on behalf of grandparents, and same-sex parenting cases.
Rina takes a client-focussed approach and aims to achieve the best possible outcome for all her clients, considering and tailoring her advice to each individual set of circumstances, whilst always ensuring that the children’s best interests remain at the forefront. Rina can support her clients in direct negotiations concerning arrangements, issuing a Court application or using alternative dispute resolution, such as mediation or arbitration.
Alongside children-related matters, Rina is also experienced in advising on all matters arising out of divorce and separation.