Naomi Devlin, Partner in our Family Law department, considers the rights of grandparents and other extended family members to have contact with their grandchildren.
The government has recently announced plans to allow working grandparents to share parental leave with the parents of a child to enable them to be fully involved in their grandchildren’s upbringing. It is a sad fact, however, that not all grandparents are able to enjoy being included in their grandchildren’s lives. When families suffer a breakdown, grandparents can sometimes find themselves excluded from seeing their grandchildren and can feel that their options are limited to re-establish a relationship. In some cases, however, legal avenues are available to them to address this issue.
Under the Children (Northern Ireland) Order 1995, applications may be made for a Contact Order with a child, or children. In general, the parents of the child have an automatic right to make such an application, however grandparents, or other extended family members require permission, or ‘leave’ of the Court to apply for such an Order, unless the child has lived with them for a period of time immediately preceding the issue of the application.
An application for leave to commence proceedings will be considered by the Court, taking into consideration the applicant’s connection with the child, the nature of the application, and whether the child may suffer harm by the application being brought.
If the Court deems that it is appropriate for leave to be granted, the Applicant is then entitled to bring their application for a Contact Order. The views of the parents, or others holding parental responsibility, will be sought in respect of contact. In some cases, it may also be appropriate for the child’s views to be heard regarding whether they would like contact to go ahead. In any application for a Court Order, brought by a parent, grandparent or otherwise, the child’s welfare will be the paramount consideration for the Court in reaching a decision.
Case law has demonstrated that there is no presumption that contact with a grandparent will be in the child’s best interests. It is therefore a matter for the Applicant grandparent to demonstrate to the Court that in the particular circumstances of their case, that it is in the best interests of their grandchild that contact should occur. Courts may take the view that a grandparent’s contact should be secondary to parental contact, so it is important for a grandparent to demonstrate why they should have ‘stand-alone’ contact with the child. The Court may be hesitant to over-burden the child with frequent contact visits, particularly if a Contact Order is in place for them to see one or other of their parents. If contact is to take place, it may occur either directly, through face-to-face visits, or indirectly, via letters, cards or telephone calls.
Unfortunately grandparents’ applications for Contact Orders are not always straightforward, given that there is effectively a ‘leave’ hurdle to jump, before being granted permission to being the substantive application before the Court. It is therefore sensible for prospective Applicants to obtain sound legal advice prior to making any such application to the Court.
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