For many children their grandparents are the most important people in their lives. Their confidant, their babysitter, guardian, best friend and the producer of the best cakes anyone can ever make. Not to mention or their stories. Did I mention their stories? Ok, sometimes repetitive, but damn good stories. So it is something of anomaly that they do not have an automatic right to see their grandchildren should their children (the parents) separate or some family feud develop. It always saddens and frustrates me when grandparents come to see me (which they too often do) to say that there has been a falling out, or a new partner or some issue which they can barely remember and as a consequence they are no longer allowed to see their grandchildren.

On any level this cannot be in the best interests of the children or indeed of society. I appreciate that there are times when bad things (and sometime really bad things) may have happened, which means that it is absolutely prudent and necessary for such relationships to be severed, but this is often the extreme. Children deserve to have (where safe) relationships with grandparents. It informs their identity, their heritage and indeed their ethnicity.

I pause, to state a vestige interest: I had grandparents. Ok. Its out there.

The statistics from the MOJ on this issue are galling. Grandparents have made over 2,000 applications for child arrangements orders. These figures are on the rise. They also do not reflect the complete picture, as many grandparents are making applications in the nominal name of their own children (the “father” or “mother”) to see the grandchildren.

But grandparents face an additional hurdle though the Court when seeking to spend time with the grandchildren. They require the permission of the Court, to actually be allowed, to apply to the Court, for an order (a s8 order) to spend time with the child. So for grandparents it is a two step process.

Firstly seek permission to make an application to spend time with the child; then if they are successful and only then, can they make an application to actually spend time with the child.

The Court will consider each application individually, and will look at a number of issues when deciding whether to grant permission for an application to be made by the grandparent.

There can be exceptions under s.10(5)(c)) but otherwise they have to meet the criteria as set out in s.10(9). This is the actual law bit (stick with it). The Court will firstly consider the welfare needs of any children, and whether if by allowing an application to go ahead, it would cause risk or harm to a child. The Court will look at the nature of the application, and the applicant’s connection to the child or children. The Court will also have to consider the views of the parents. 

I know. Its complicated. Unnecessarily so. Too many grandparents bulk at a system which put such hurdles up against them; causing them to give up on such significant relationships.

It is only when (and if) that permission is granted can they apply to the Court to see the grandchildren. The key however is that there is no authority creating a presumption of leave in favour of a grandparent. Each case is to be looked at on its merits. Which often creates delay, undue stress and of course costs. In most cases I venture it makes a fractured family relationship even worse.

It is claimed that this additional step is in place “to act as a filter to sift out those applications that are clearly not in the child’s best interests”.

In 2010 the then Labour Government produced a Green Paper setting out an intention to remove the requirement to seek permission of the court. The Family Justice Review was then set up in March 2010 and supported by the Coalition Government when it came into government. The Review reported in November 2011 that “the need for grandparents to apply for leave of the court before making an application for contact should remain. This prevents hopeless or vexatious applications that are not in the interests of the child”.

The Government accepted this recommendation and this remained the government position of the Coalition and current Conservative Government. I think this position and the current state of the law is wrong. Grandparents are not randomly making vexatious applications to see their grandchildren. In an open society we should make it easier for an access to justice and where safe a desire to bring families together, or guarantee such relationships.

This additional burden is unnecessary and undesirable. It should be abolished. It is an additional layer to create disharmony between the family members and is not in my opinion child focused or family focused. It is interesting to note that in Scotland, ministers are considering a legal presumption that children stay in touch with grandparents after a divorce or separation, giving a strong signal to couples, courts and families. This must be right. As a barrister specialising in children law, I am all too aware that the welfare of the child is the court’s paramount consideration. Grandparents being in their lives is rarely not in their welfare.

The law not only needs to reflect; it needs to act.

The financial cost for grandparents of such applications can be significant (they can always save money by buying my book : How To Represent Yourself in the Family Court: A guide to understanding and resolving family disputes (awkward plug) (available on Amazon and all good bookshops) but the emotional cost of losing or failing to develop such relationships can be even more extreme. There should be a legal presumption that children do stay in touch with their grandparents. The law can put in whatever checks and balances it requires to protect children (as it does now). But getting this right is in everyones best interests.

Jason M Hadden is a barrister specialising in children law at St Ives Chambers