Grandparent contact: another presumption?

ABSTRACT

This article reviews the debate about the enhancement of grandparents’ legal status in relation to their grandchildren. In particular, it observes that calls for a legal presumption in favour of grandparent contact with their grandchildren when family relationships break down were emboldened by the enactment in s1(2A) of the Children Act 1989 of a presumption that involvement of both parents in their children’s lives furthers children’s welfare. Proponents of grandparent rights argued that there should be a similar statutory presumption in favour of grandparent involvement. It is also argued that courts should strictly enforce child arrangement orders that give grandparents time with grandchildren. The article examines the welfare case for such involvement and concludes that there is no unequivocal evidence to support it. It also considers the effect of the presumption in s1(2A). The article concludes that to enact a similar presumption in favour of grandparents, to apply a de facto presumption, to enforce orders strictly and even to remove the leave requirement that currently exists, could prejudice the interests of mothers as well as children.

KEYWORDS:

• Grandparents
• contact
• child arrangements
• presumption

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. MailOnline 31 May 2018. Judgement of the Court (First Chamber) of 31 May 2018 Neli Valcheva v Georgios Babanarakis. Case C-335/17 accessed @ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62017CJ0335. In fact the Court, faced with a dispute over jurisdiction, ruled that, in relation to Brussels IIa Regulation, ‘The notion of rights of access refers not only to the rights of access of parents to their child, but also to the rights of access of other persons with whom it is important for the child to maintain a personal relationship, among others, the child’s grandparents’. See also BBC News 7 May 2018. ‘Call for “rights for grandparents” law’ https://www.bbc.co.uk/news/uk-politics-44028473 (accessed 21 March 2019).

2. BBC Radio 2 13 March 2019 Jeremy Vine https://www.bbc.co.uk/sounds/play/m00036mt (accessed 21 March 2019). See also Jackson 2019b‘You can’t please all of the people…’ https://www.bristolgrandparentssupportgroup.co.uk/blog/you-cant-please-all-of-the-people/(accessed 21 March 2019).

3. Beccarini and Ridolfi v Italy (no.63190/16) in relation to a violation of Article 8 (summarised in J Queen Family Law in the European Court of Human Rights in 2017 Family Law Week 26 February 2018).

4. See e.g. Kaganas and Piper (1990, pp. 27–8) and references there. See, more recently, Taylor (2018).

5. See Kaganas (2007).

6. Under the Domestic Proceedings and Magistrates Court Act 1978 and the Guardianship of Minors Act 1971. These statutes gave grandparents standing to apply for what was termed access during the subsistence of a custody order. See Kaganas and Piper (1990, pp. 29–30).

7. See Kaganas and Piper (2001, p. 253).

8. Now a child arrangements order.

9. Section 22 C CA inserted by the Children Act 2008.

10. See Kaganas and Piper (2018); see also Gheera et al. (2019).

11. Section 1(2A). See also BBC Radio 2 13 March 2019 Jeremy Vine show where a founder of the campaign group, Bristol Grandparents Support Group, and a member of Resolution were interviewed to discuss the law and the possibility of introducing a legal presumption in favour of grandparent contact: https://www.bbc.co.uk/sounds/play/m00036mt (accessed 21 March 2019).

12. Esther Rantzen, the Bristol Grandparents’ Support Group and Granpart were specifically mentioned (UK Parliament, House of Commons 2018).The website of Granpart does not refer to changes in the law and covers mainly their publicity successes. Grandparents Apart, still has a website that focuses on contact and the law. Grandparents Plus, which appears to have replaced the Grandparents Association, is concerned mainly with public law issues and grandparents as carers.

13. See Esther Rantzen. (2017); Baker (2015); Jackson (2018a); Jackson (2019a). This adoption of the construct is not confined to the UK. See e.g. Alienated Grandparents Anonymous (Undated).

14. See Kaganas (2007, p. 29).

15. ‘Being estranged and alienated is deeply, deeply devastating and it can all feel so utterly hopeless’ (Jackson 2019b. See also Jackson (2019c).

16. See Nigel Huddleston (UK Parliament, House of Commons 2018, Col 172 WH).

17. Previously called a contact order.

18. Re A (A Minor) (Contact: Leave to Apply) [1995] 3F.C.R. 543.

19. Ibid.

20. Re A (A Minor) (Contact: Leave to Apply), [1995] 3F.C.R. 543; Re F and R (Section 8 Order: Grandparents’ Application) [1995] 1F.L.R. 524.

21. B (A Child) [2012] EWCA Civ 737 [48].-.

22. Re H (Children) [2003] EWCA Civ 369 [16] – [19].

23. Ibid [26].

24. Re A (Minors) (Residence Order) [1992] 3 All ER 872.

25. Re H (Children) [2003] EWCA Civ 369 [24].

26. Ibid [28].

27. Douglas and Lowe (1990, p. 105).

28. See Crook (1994); The Law Commission (1998) prior to the Act, had also expressed this opinion at para 4.41.

29. Re J [2003] FLR 114; Re H [2003] EWCA Civ 369.

30. Re A (A Minor) (Contact: Leave to Apply) [1995] 3FCR 543.

31. Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114; Re B (Paternal Grandmother: Joinder as Party [2012] 2 FLR 1358.

32. See Douglas (2003).

33. See, for example, Norgrove (2011, para 4.4).

34. See Norgrove (2011, para 4.46).

35. [1997] 1 FLR 793 at 795.

36. [2003] FLR 114.

37. CW, CHW, BAW, v TW OW and YW (by their Guardian ad Litem, NYAS) [2011] EWHC FAM 76.

38. [1995] 2 FLR 153 at 157.

39. Idem. This principle was affirmed in relation to applications under section 34 of the Children Act 1989 (for contact with a child in care) in Re W (Contact: Application by Grandparent) [1997] 1 FLR 793 and also, in Re M (Care: Contact: Grandmother’s Application for Leave) [1995] 2 FLR 86, when Ward LJ stated, ‘The fact is that Parliament has refused to place grandparents in a special category or to accord them special treatment’ (at 95).

40. [1996] CLY 565, Case Digest. See also Re A (A Minor) (Contact Application: Grandparent) [1995] 2 FLR 153.

41. In the Matter of B (A Child) [2012] EWCA Civ 858. But see D (Children) 2010 EWCA 496 Civ.

42. Children and Families Act 2014 (Commencement No 5 and Transitional Provision) Order 2014/2749.

43. But see p.557 on the discretion retained by the courts.

44. Nick Clegg, Deputy Prime Minister in the Coalition Government reportedly promised change. See Deuchars (2013). See also Gloria De Piero (UK Parliament, House of Commons 2018, Col 181).

45. 2010 EWCA 496 Civ.

46. Two thousand applications in 2016, according to Nigel Huddleston MP (UK Parliament, House of Commons 2018, col 173).

47. The patron of this group is Esther Rantzen.

48. See Nicholson (2004, paras 7.1–7.2). See also mruk research Ltd 2004, para 5.49).

49. It is claimed that a presumption in favour of grandparent contact has received support from ‘the higher judiciary’ (Buchanan and Rotkirch 2018, p. 140). The authors do not elaborate on this claim. In addition, the authors claim that Kaganas (2007) argues in favour of a presumption (at 140).This claim is erroneous.

50. See UK Parliament, House of Commons 2017a, Col 49).

51. Elsewhere Jimmy Deuchars has expressed a contradictory view: ‘It may surprise some people to learn that I don’t believe in automatic legal rights for grandparents. However, courts and social services do need to give grandparents more consideration than at present when making assessments about children’s lives’ (Deuchars 2013).

52. For a brief summary, see Paris Logue (undated).

53. See Kaganas (2018, pp. 564–65).

54. Although the courts are not bound to do so. We are indebted to Stephen Gilmore for stressing this point in the context of an email exchange about parental involvement.

55. See D (Children) 2010 EWCA 496 Civ.

56. For a more detailed account of the earlier research, see Kaganas and Piper (1990, p. 32–4); Kaganas (2007, p. 26–8).

57.. See also p.136.

See also p.136.

58. See Peacey V and Hunt J (2009). They estimate on the basis of their sample that about 9% of families have some form of shared care after separation or divorce (p.17). See Re M [2014] EWCA Civ 1775.

59. See also Jackson (2018a); (2019a); (2019d); (2019e).. Similarly, in the USA Grand – advertised as ‘The Lifestyle Magazine for Awesome Grandparents!’ – ran an article by the president of ‘Alienated Grandparent Anonymous’ which was headed ‘Florida Grandparents Fighting For the Right To See Their Grandchildren’ (Aga 2018).

60. See e.g. Meier (2009).

61. See Kaganas and Piper (2018).

62. See Deuchars and Loudoun (2006).

63. F v L [2017] EWHC 1377 (Fam).

64. Re A (Section 8 Order: Grandparent Application) 1995 2 FLR 153 at 154.

65. See eg Resolution undated.

66. See Diduck and Kaganas (2012, p. 722); Kaganas (2007, p. 25–6); Piper (1996, pp. 74–77); Piper (1993, especially chapters 4–6).

67. See Kaganas (2007, p. 39).

68. In addition, PD12 J has been amended to qualify the reference to harm by introducing the notion of ‘unmanageable risk’. See Kaganas (2018, p. 559) for discussion.

69. CW, CHW, BAW, v TW OW and YW (by their Guardian ad Litem, NYAS)

[2011] EWHC (Fam) 76.