Grandparents and their Status in Family Law

Rhiannon Davies, Barrister, of New Walk Chambers reviews recent developments affecting the legal status of grandparents in family proceedings.

Rhiannon Davies, Barrister, New Walk Chambers
It has long been acknowledged that grandparents have an important role to play in the upbringing of children. Re W (Contact: Application by Grandparent) [1997] 1 FLR 793 in particular noted that contact with a grandparent may be beneficial for children. Statistics prepared by Grandparents Plus in July 2009 showed that approximately one in three families rely on grandparents for child care, rising to 47% of all single parent households. Yet Parliament, through the Children Act 1989, does not single out grandparents for particular rights or recognition simply by virtue of being grandparents.

The figures are striking. Research published by Families Need Fathers, the Grandparents Association and the Family Matters Institute indicates that 42% of grandparents lose contact with their grandchildren when their parents separate. The potential therefore for grandparents to become involved in proceedings for contact and other s8 orders is significant. In terms of public law proceedings, in July 2009 Grandparents Plus reported that 200,000 children were living with their grandparents as kinship carers, and that placement with grandparents was the preferred choice of 65% of parents in the event that they were unable to care for their children.

In terms of a child's primary residence, the approach of the courts has appeared to emphasise that, where possible, the children should remain with the parents to whom they were born. The case of B (A Child) [2009] UKSC 5 however recently re-asserted the importance of the welfare principle as the paramount consideration when making decisions regarding the upbringing of the child, and stated that application of the natural parent presumption, although a consideration, is secondary to undertaking the statutory balancing exercise to act in the best interests of the child. This may have important implications for grandparents (and other relatives) seeking residence orders in respect of children.

The Government Green Paper 'Support for All – the Families and Relationships' makes proposals for additional support for adults and children following the breakdown of a relationship. Significantly, a number of these measures are directed towards grandparents, including proposed reform to improve their ability to apply for contact and support for kinship carers.

This article is intended to review the current position of grandparents within family law, particularly in the light of the above.

The Requirement for Leave
In many cases any contact between children and their grandparents is negotiated outside of contact proceedings, or develops as part and parcel of contact granted to a non-resident parent. Contact with extended family members, such as grandparents, can stand in place of a child's contact with an abusive parent; alternatively trusted grandparents may fulfil a supervisory role in such cases. Yet substantial numbers of grandparents lose all contact with their grandchildren on separation, and many are turning to the Children Act 1989 to secure orders for defined contact.

It should be added at this stage that the new provisions for the enforcement of contact and financial recompense for breaches of an order will not be available to grandparents who rely solely on the goodwill of the resident parent, or who simply join in with the contact afforded to the non-resident parent. Arguably there is inequality between grandparents and parents in this position and it may be considered that a defined contact order in certain situations is as necessary for a grandparent as it is for a parent.

It is well known that grandparents require leave of the court to apply for a s8 order with respect to a child, save where the criteria under s 10(5)(c) are made out, namely where they have a residence order, or the child has resided with them for a period of three years or, finally, that they have the consent of those with parental responsibility. The test for leave, as set out at s10(9), does not differ for grandparents or any other relative (or other prospective applicant) and whilst the merits of the substantive application is to be considered, the prevailing case law (for example Re J (Leave to Issue Application for a Residence Order) [2003] 1 FLR 114) emphasises the need to give due weight to the statutory criteria. There is no authority creating a presumption of leave in favour of a grandparent. Each case is to be looked at on its merits.

Prior to the Children Act 1989, the ability of grandparents to apply for contact was far more limited, being permitted only where a custody order was in force or if their own child had died. Section 10 of the 1989 Act therefore does represent a move forward in terms of the rights of non-parents to apply for contact, notwithstanding the requirement of leave. In practice, it may be that the application for leave is not a substantial hurdle for meritorious cases. However the question has been asked as to whether leave ought to be required at all for grandparents with a close relationship to the child. In terms of an application for contact by such grandparents, the leave requirement may seem unduly onerous, given the benefits that a child may receive from grandparents being involved in their lives. It is possible that the high proportion of grandparents who lose contact with their grandchildren following separation can be attributed in part to the grandparents being unaware of their legal options, or potentially deterred by the requirement of leave.

The Government Green Paper 'Support for All – the Families and Relationships' put forward a package of proposals to improve the position of grandparents. These included removing the leave requirement to permit applications for s8 orders by grandparents as of right, and increasing the information available for grandparents as regards contact with grandchildren after a breakdown in their parents' relationship. It is evident that, given the clear wording of s10, any reform around issues of leave to apply would require legislative change. These proposals have been welcomed by organisations such as the Grandparents Association, particularly because the current system can increase costs and prolong legal proceedings. There will also be wider consultation as to the impact of the leave requirement on other family members. Further proposals provide for improving the accessibility of children's centres and increasing the advice and support available for grandparents in caring for their grandchildren.

Residence Orders and the Natural Parent Presumption
Following the dicta of Lord Nicholls in Re G (Children) (Residence: Same-sex partner) [2006] UKHL 43), it appeared to be settled law that a child was best brought up by his or her biological parents. Thus, all things being equal, in contested residence proceedings between grandparents and a natural parent, the balance would tip in favour of a natural parent by virtue of that more immediate biological link – the so called "natural parent presumption". However, the recent decision of the Supreme Court in Re B (A Child) [2009] UKSC 5 has placed the natural parent presumption in an important context and challenged the perceived weight of this argument.

The child in this case had resided with his maternal grandparents consistently from birth and was aged three at the date of the appeal. The mother remained unable to provide suitable parenting, but the father, having had contact with the child, applied ultimately for residence. At first instance, in the family proceedings court, the justices had found no compelling reason to disrupt the continuity of care provided by the maternal grandmother, and had distinguished Re G on the basis that the child had never resided with the father. The father's appeal to the Court of Appeal was successful, and therefore it was the maternal grandmother's appeal that came before the Supreme Court. In allowing the appeal, declining to find that the justices' decision was plainly wrong, the Supreme Court (per Lord Kerr at paragraph 37) held that:
"All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim."
This was held not to be inconsistent with dicta in Re G on the basis that Re G, read in totality, endorsed the application of the welfare principle and by stating the importance of a child being raised by his or her parents in the ordinary way of things, expressed a statement of experience, and one which had been carefully qualified (paragraph 35 of Re B).

It remains to be seen what impact this decision will have in the longer term on residence applications by, or involving, grandparents. However, it does remove the perception in residence applications involving non-parents that there need to be specific, compelling reasons to depart from a presumption in favour of care by a natural parent. Thus, the position of grandparents has arguably been strengthened as a result of this decision. There are a number of children currently residing with their grandparents in circumstances where parents are unable to care. The case of Re B, focusing as it does on the statutory welfare test, is likely to lend greater weight to the arguments of grandparents that a status quo has been established when a parent seeks the return of a child. It will be interesting to see whether there will now be a greater potential for outcomes such as shared care as between grandparents and parents in cases where a parent, who had previously been unable to provide adequate care, improves to such an extent that significant contact between parent and child is possible, but there exists an established status quo which justifies substantial contact also with the grandparents. However, it is clear that whilst there remains a view that there is an advantage to a child being raised by a natural parent, this is not determinative of a residence application, but is simply part of the balancing exercise.
Public Law Proceedings
It is worth noting that as a matter of practicality, grandparents do remain in an entirely different position from parents in respect of legal aid within the arena of care proceedings. They have no right to automatic non means or merits tested legal aid. As such, a grandparent wishing to care for a grandchild, unless that they have the support of the local authority, may be in the position of having to finance such an application privately, or acting in person throughout very emotive proceedings.

However, developments such as Special Guardianship Orders have had a role to play in supporting the placement of children within the extended family and providing enhanced parental responsibility for such carers. The Green Paper makes further proposals to provide specific support to family and friends who act as foster carers which is appropriate to the issues in each case. Where a parent is unable to provide safe and appropriate care for a child, it is very often the child's grandparents who are approached to provide long term care. It is useful to see within the proposals plans to educate carers in issues of alcohol and drug misuse and also to look the issues faced by proposed kinship carers within the court proceedings.

Conclusion
Grandparents have had increasing recognition in terms of the role that they may play in the upbringing of a child. Statistics show that significant numbers of parents rely on grandparents for child care, and it is evident that there is a risk of a child losing out if the bond with a grandparent is not maintained following parental separation. The position of grandparents may have been further strengthened by the case of Re B. By re-stating the importance of looking at such cases in their entirety when determining the best outcome for the child, and not placing undue weight on the natural parent presumption, the decision may also represent a further milestone in the courts' increasing recognition of grandparents and the benefits they can bring to the child.

Whilst it could be argued that the current legislation does not create an insurmountable hurdle for meritorious cases and, further, that the requirement of leave allows consideration to be given to the impact of proceedings on the child, it is not without its difficulties. The additional requirement of leave may increase legal costs and extend proceedings unnecessarily. There is also the prospect of the requirement of leave in itself deterring grandparents from making their application. The proposals outlined in the Government Green Paper therefore provide an opportunity for children to maintain lasting relationships with their grandparents after their parental relationship breaks down. Equally, whilst Special Guardianship Orders have enhanced the position of relatives (including grandparents), Green Paper proposals for increasing the support and assistance for kinship carers can only assist in maintaining placements of children within their birth family.

Grandparents play an important part in a child's life and the case of Re B and proposed legislative changes appear to reflect this.