Dear Mr Deuchars
Thank you for your emails of 22 January, addressed to various Ministers, about grandparents applying for contact with their grandchildren.
I can only comment on the system in England and Wales, as family law is devolved in Scotland.
The Government recognises and values the important role which grandparents can play in children’s lives. Many grandparents are already involved with the care of their grandchildren and most children see their grandparents as important figures in their lives. Grandparents' lobby organisations in England and Wales told us that the requirement to seek leave of the court before applying for contact was an unnecessary and distressing hurdle for grandparents, and campaigned for this requirement to be removed. In recognition of the beneficial effect most grandparents have on their grandchildren's lives, we agreed to remove this requirement.
Your email refers to a 'legal right to your grandchildren'. The Government’s view is that any statutory presumption of contact, whether for grandparents, parents or other family members, would inevitably detract from the position set out in clause 1 of the Children Act 1989 – that the welfare of the child must be the paramount consideration of a court whenever it is deciding any question relating to the child’s upbringing. The Act focuses on the needs of the child rather than the rights of parents or relatives. The Act regards the primary responsibility for bringing up children in most families as resting with their parents and there may be cases where parents prefer to limit contact with grandparents. The Government does not intend, therefore, to introduce a presumption of contact for any family members.
Your email also discusses the difficulties grandparents face when a parent opposes their application for contact. The Government knows that there is dissatisfaction with the current adversarial court system, and wants to be certain that the system supports families as fully as possible in establishing and maintaining a co-operative approach to agreeing future arrangements when relationships break down, and does not unwittingly cause additional stress at what will already be a difficult time.
On 20 January 2010, the Secretaries of State for Justice and Children, Schools and Families, as well as the Welsh Assembly Government Minister for Health and Social Services, therefore announced their intention to launch a review of the family justice system.
The review will be conducted by a panel, comprising four representatives independent of Government and senior representatives from the Ministry of Justice, the Department for Children, Schools and Families, and the Welsh Assembly Government as relevant for devolved matters.
The review will be asked to make recommendations in two core areas:
(1) what steps can be taken to promote informed settlement and agreement; and (2) whether improvements need to be made to the way in which the system is managed.
It will be guided by the following principles:
1. The interests of the child should be paramount to any decision affecting them (and, linked to this, delays in determining the outcome of court applications should be kept to a minimum)
2. The court’s role should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children and vulnerable adults in doing so;
3. Individuals should have the right information and support to enable them to take responsibility for the consequences of their relationship breakdown;
4. Mediation and similar support should be used as far as possible to support individuals themselves to reach agreement about arrangements, rather than having an arrangement imposed by the courts;
5. The processes for resolving family disputes and agreeing future arrangements should be easy to understand, simple and efficient;
6. Conflict between individuals should be minimised as far as possible.
The Review Panel will report on their findings in 2011.
You mention your concerns about the enforcement of contact orders because of the obstructive behaviour of the parent with whom the children reside. Where contact has been agreed or ordered by the courts, it is essential that it is adhered to. If, at the end of a long and difficult dispute, the contact ordered by the court does not take place, then it has been a waste of time and energy but, more importantly, the child is not benefiting from what the court has decided will promote their welfare. The enforcement of contact orders is a sensitive area. Deliberate refusal to obey any court order is contempt of court that can be punished with a fine or the Courts can impose community-based “enforcement orders” for unpaid work. The court also has the power to decide to transfer residence to the other (non-resident) parent if this is considered to be in the child’s best interests.
However, penalties such as fines and imprisonment may not always be appropriate in a child contact case because of the effect that this may have on the children at the centre of the dispute.
The Children and Adoption Act 2006 gave courts additional powers to facilitate contact and enforce contact orders. For instance, in addition to the current system of fines and imprisonment, they are able to refer parents to a counsellor or a parenting programme or make enforcement orders imposing requirements for unpaid work. The courts are also able to award financial compensation, for example where the cost of a holiday has been lost. These additional levers are available to the courts in any contact case, if the court considers they would assist resolution.
I hope this addresses your concerns.
Public Communications Unit
Dear Mr Deuchars
Thank you for your email of 28 January, addressed to Ruth Kelly, concerning the Charter for Grandchildren.
As you may be aware the Families and Relationships Green Paper, published on 20 January 2010, announced the Government’s intention to remove the requirement for grandparents to obtain the permission of the court prior to applying for a contact order (the formal term for this requirement is applying for leave of the court) in recognition of the important role grandparents often play in their grandchildrens’ lives.
I understand the "Charter for Grandchildren" produced by the Scottish Executive was produced together with the Executive's new edition of the Parenting Plans. Although we have no plans to produce a similar document in England I think it is fair to say that the principles of the charter are already well established through case law, government policy and the Children Act 1989 itself.
I can assure you that the Government recognises and values the important role which grandparents can play in children’s lives. Undoubtedly, many grandparents are already involved with the care of their grandchildren and most children see their grandparents as important figures in their lives. Of course, while grandparents may apply for a contact order through the courts, it is usually a more fruitful route for parents and grandparents to work cooperatively to ensure that children have ongoing contact where it is in their best interests. To support this we have published a revised edition of the Parenting Plans which highlights a range of issues parents and relatives may wish to consider in reaching agreement about contact arrangements. The Plans also provide a range of case studies giving examples of how others have reached agreement as well as a comprehensive list of support and advice agencies where parents and relatives can, if necessary, turn for advice. You can download our Parenting Plans publication from the Cafcass publications website below:
Public Communications Unit