Forum

Grandchildren - The Rewards or Heartache of Growing Old

The role of grandparents has never been more important nor more threatened. With the demographic trend of people living longer, there are now more grandparents around. They are also increasingly wealthy.

Whilst solicitors have traditionally been involved in advising on the creation of trusts for the education and maintenance of grandchildren and preserving assets for passing on to the next generation, a new and increasingly common aspect of Family Law stems from the relationship of grandparents and grandchildren.

The breakdown in the family unit, either through divorce, parents not marrying or geographical mobility of families, have provided Solicitors with an expanding area of new work - to advise on obtaining and/or maintaining grandparents' contact to their grandchildren, protecting the welfare of grandchildren or even caring for grandchildren.

Prior to 1989, grandparents had limited legal remedies. Due to pressure from the grandparents' lobbyists, Parliament tried to remedy this in the Children's Act.

With the leave of the Court, and on a free-standing basis, grandparents can now apply for an Order under Section 8, for a Contact or Residence Order (formerly access and custody).

To obtain leave grandparents must satisfy the Court as to their relationship with the child and the Court must have regard to any disruption that might result to the child from the application. For most grandparents applying for a Contact Order leave should be a formality, especially if there is an on-going close relationship between grandparents and grandchild.

Having obtained leave, the Courts will consider the welfare principals set out in Section 1 of the Act and the statutory check list. The contact ordered may be direct - overnight stays or visiting contact, or indirect - by telephone or letter. Such contact is of enormous mutual benefit to grandparent and grandchild.

Occasionally grandparents may seek Residence Orders - where both parents are dead, or incapable through illness, mental or physical, to care for the grandchildren or if there is a definite threat to the grandchildren's well-being.

A heavy onus would be on the grandchildren at the leave stage and the hearing to justify their application. It is imperative that legal advice is obtained at the outset.

The use of specific issues and prohibited steps orders by grandparents will be limited as they tend to relate to the issues of parental responsibility, on which grandparents are not seen as having any legal interest or duty.

With the trend towards mediation in family matters as a whole, grandparents should also consider these bodies as well as the Courts. The availability of mediation may depend on your geographical location, with some areas better equipped than others.

As with parent contact problems, the Courts and Mediation may prove fruitless, as it will largely depend on the co-operation and support of the parent. Grandparents should always be advised to maintain good links with such parents, even where it is an ex-in law.

A number of pressure groups have been formed to promote the importance of the grandparent - grandchild relationship - Grandparents' Federation, the National Association of Grandparents, Parents of Parents and Love of Grandparents in Conflict. Advice, support and literature can be obtained from these organisations.

Lynda Monks, Partner - Lawson West