Do grandparents legally have visitation rights?

Grandparents can very often play an important role in the lives of their grandchildren, by providing comfort and support, as well as a connection to their family history. However, in England and Wales, whilst grandparents do not have an automatic legal right to see their grandchildren, there are options available if issues arise

If there has been a relationship breakdown or a fallout between parents, the best way to resolve matters for families, and especially the children, is by way of informal agreement. However, for a number of reasons, that is not always possible. If an agreement cannot be reached informally with the parents or carers of the child, the grandparent can seek to apply to the court for a Child Arrangements Order (Order).

Child Arrangements Order

Such an Order determines:

• where a child lives,
• when they spend time with a person named in the order, and
• when and what other types of contact, such as phone calls, take place with any person.

Before making an application to court, every effort must be made to resolve matters outside of the court arena, including by using alternative dispute resolution (ADR), such as mediation. Mediation can lead to a more positive experience for all involved. If a grandparent does not attempt to resolve matters through ADR before applying to court, the court may consider making an adverse cost order against them

If ADR, such as mediation, is not appropriate or fails, formal action through the local Family Courts may then be made. This can be a lengthy process, not least because the court application is a two-stage process.

What can the court do?

First, a grandparent requires the permission, or ‘leave’, of the court, before they can apply for an Order. When a court considers an application for leave to apply for an Order, the court “shall … have particular regard to” a range of factors, including the nature of the proposed application and the applicant’s connection with the child. The court will also consider whether the application might be potentially harmful to the child’s well-being in any way.

If the court grants permission to make an application for an Order, the court then will apply the same process as it would if it were a parent making an application for an Order. The court will always consider all the child’s circumstances and must only make an Order where it considers it better for the child to do so than making no Order at all.

The court will consider the history of the relationship between the grandparent and grandchildren and whether what is being sought would be beneficial for the grandchildren. The court will make an Order for the grandparent to see their grandchildren if, having considered all the circumstances, it considers it in the best interests of the grandchildren to do so. This is the case even if one parent objects. The court balances the wishes of the children and the wishes of the parents, and if they do not align, the court can enforce the Order if the parent/carer does not comply, including fines and even prison as a last resort.

In some circumstances, grandparents may apply for an Order that the grandchildren live with them. For example, where the local authority is considering a care order, grandparents may apply for an Order that the grandchildren live with them, or they may wish to apply for special guardianship, or even to become foster carers or adoptive parents.

The court recognises the important role that grandparents can play in their grandchildren’s lives and will always consider the child’s best interests before making any decisions.

If you have questions or concerns about visitation rights, please contact Victoria Furlong.