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Grandparents' rights and family law

David VavreckaWhat rights do grandparents actually have? What can you try if you have been alienated from your grandchild? David Vavrecka joined us at GNHQ to answer these and other family law questions.

David is an experienced barrister based at Coram Chambers in London and has practiced in the area of family law for over 20 years, with expertise across all areas of both domestic and international proceedings involving children. He has built up expertise in all types of family law cases involving children, acting regularly for all parties: that includes parents, grandparents, foster parents, as well as children and local authorities.

David is also a part time judge, so has experience from the other side of the bench, and specialises in trying cases about children.

Q: Those of us involved in denied contact know that a grandparents has NO automatic legal right to see their grandchildren. Of course you can go through the courts, but is that the way forward?
It could cost you your life savings and cost you huge emotional stress, so go into it with both eyes open.
I really hope that you are honest about costs and outcomes, bearing in mind your profession. Me cynical? I most certainly am. Perhaps you could answer this: if a contact order is breached, what will be the consequence be for the person breaking that order (the reality not the book answer)? (minty)

A: Hi Minty, it's true that grandparents have no "rights" over and above anyone else, in the sense that if you do make an application to the court, you still need permission to make the application (called "leave"). However, the court will take account of the connection and blood tie, and this will be an important factor when the court comes to consider whether it is in the child's best interests to order contact.

As for costs, I can see this is a common theme of many of the posts, and legal costs are obviously seen as a major disincentive to going to court. So, yes, the cost of going to court can seem very large, but as a last resort, it may be a step many of you will consider you want to or have to take. Many solicitors will offer fixed fees, and discounts for members of organisations (like the Grandparents Association). It is also worth shopping around and seeing if you can negotiate a better deal from a competitor. So costs of between £500-£2000 for the initial stage, of receiving advice and upto the first hearing may give some idea of the scale of costs. Barristers can now also accept instructions direct from members of the public (Direct Access) which can also cut the costs

As for enforcement- this is the hardest nut to crack, and the courts are trying hard, and new powers allow courts to impose conditions (including unpaid work or attending parenting programmes) as well as committing parents to prison in extreme cases. If grandparents are determined to enforce their hard won contact orders, I would hope they will end up being successfu - but it can be a long and arduous journey!

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Q: I have two letters from Hon Michael Gove telling me I can apply to courts for contact - but not how contact orders can be enforced! When my son was refused contact in the family court his solicitor/barrister were "staggered" and "baffled" at the judge's attitude. As well as lies about my son I was accused of attempted abduction of my grandson which I swear is a downright lie. I question how false allegations against fathers/grandparents and alienation of the child can be challenged? (maniac)

A: Dear Maniac, I sense your frustration, which at times I share. The difficulty is that the court always has many different and conflicting voices before it, all wanting a different outcome, and all claiming to be acting in the best interests of the child. Investigating and resolving disputed cases is time consuming and without knowing the details of your case, I suspect the Court was acting cautiously because someone in the case was making allegations that needed investigating.

As for challenging false allegations, it is possible for the person falsely accused, if they are not a party, to become a witness and be called to court to give evidence, which will enable the court to decide the truth of the allegation. In some cases, you can apply to become an intervenor, which allows you to see the papers in the case, and to be represented at the hearing which is investigating serious allegations.

Q: We are all familiar with the lawyers who quite correctly say: My instructions are... And indeed, they have a duty to represent their clients and take instructions. But how can any lawyer justify putting forward "instructions" which are self evidently untruthful and worse, make unsubstantiated allegations against others which are allowed to go unchallenged? (MiceElf)

A: Hi MiceElf. Sorry - representing people is my job. I am not the judge, and I do not sit in judgment on my clients. If a client is putting forward an obvious untruth, any lawyer representing them will challenge the client and their "instructions", and give firm advice about the consequences. I can't speak for all the lawyers out there, but I work very hard to make sure clients give realistic instructions and understand the consequences of their actions.

Q: My son and daughter-in-law have (mutually) decided to separate. They have two children under 5. At the moment they are getting on well enough and have agreed in principle what they will do with the house, custody and so on. Given this do they need a lawyer to arrange the divorce or can they save money by doing it themselves (I appreciate your personal view may favour the legal route but would appreciate objective view!) (libertybodice)

A: Hello libertybodice. I always start be encouraging all my clients to try and deal with things amicably and without going near any courts. I know most of you will be surprised to hear that, but I have enough clients and don't need to encourage any more people to litigate.

So yes, they can try and deal with things as much as possible without a lawyer, but as regards the division of assets (eg the house), they may need a lawyer to assist with some aspects of this. Given I know nothing about the complexity of the couple's finances, I think they both need to consider whether they may need independent legal advice about their proposed agreement.

Certainly the children's side does not need to go near any court, but I always suggest any agreement reached should be recorded in writing, so that if the arrangement does break down and someone takes it to court, there is a clear record of what they actually agreed.

Q: I want to ask whether I need a lasting power of attorney for my mother? We already have an enduring power of attorney from way back and I'm not clear why doctors who might be treating my mum wouldn't consult me and my brother as a matter of course and why we wouldn't be able to express her wishes (which are very clearly and always have been for no invasive treatment or major operations). (Iwasframed)

A: I always advise updating powers of attorney, particularly as circumstances change, so that you can then be sure that you are consulted in related to treatment.

Q: My daughter's partner has a child as a result of a very brief affair he had shortly before he met her. He has always paid for his son and seen him as often as possible - which has meant travelling several hours in an evening because they live in another town - but the child's mother often refuses contact at the last minute. She is particularly prone to do this when my daughter has planned something - a family party, a weekend away. The mother seems to take pleasure in wrecking the family's arrangements.

I would like my daughter's partner to stand up to this woman more and threaten to get legal enforcement but (I think influenced by Fathers for Justice publicity) he thinks that fathers are not given priority by the courts and he might end up not seeing his son at all. I think this is ridiculous given how exemplary his behaviour has been. What can I say to persuade him? (Andimerry)

"The outcome should always be determined by the child's welfare."

A: Hello Andimerry. You are right to suggest he stands up to this behaviour. He doesn't at the moment sound as if he has a contact order, so he does not have anything to enforce yet, but I suggest he try to see a local specialist solicitor (perhaps asking for an initial free consultation) and take advice. It may be possible for the two parents to meet in mediation to resolve this, or he may need to pursue an application for contact. It's wrong to say fathers are not given priority by the courts - the more usual problem is father's shirking their responsibilities. It seems he is a devoted and active father, and the court is likely to recognise this with a court order in his favour. Good luck.

Q: I would appreciate some guidance on how custody arrangements from a legal perspective. Is it automatic that a mother has the advantage in terms of the children living with her? It seems very unfair that many hands-on fathers are reduced to seeing their children every other weekend even if they have played no part in the breakdown of the relationship. (Leila)

A: Hi Leila. There is no "automatic" anything in children's proceedings - it is all governed by the idea that the child's welfare is paramount. So, it is not automatic for the mother to have an advantage, and I have represented many fathers who have successfully obtained custody (residence). In many cases, the reality is that one person is simply more available to care for the child, or has a much closer relationship. The key is for fathers to establish extensive involvement prior to the relationship breaking down. Easier said then done, I realise. Obviously geography also plays a part - if the parents live 20 minutes apart, the other parent can more easily be involved mid-week, then when the parents are many hundreds of miles apart. Hope this helps.

Q: Have you (as a lawyer) managed to secure access for grandparents to their grandchildren when it has previously been denied? It would be uplifting to know that some stories have happy endings. (swizzle)

A: Dear swizzle, the straight answer is yes - and despite the horror stories from some, I would hope I am not the only one who has had some uplifting results.

Q: We are about to be involved in a child pre-care conference which has been brought on a totally false premise. We were advised to contact a lawyer which we did, and after the initial introduction, we were told and I quote, "if social workers say jump, we say, how high?" He meant lawyers, so what hope have we of them speaking for us? I have researched the system and been absolutely blown away at the so-called legal process in this country. I believe the outcome is decided before court, between the "mega bucks" cohorts who all agree on penance of "consequences" if they don't. I have written reports from so-called professionals giving our child true and glowing assessments and then to see others from the same person repudiating that report. God help us all, and the taxpayers who fund it all. (imbroglio)

A: Hi imbroglio, I am not sure if I follow what you are suggesting. I don't know which part of the system you feel is corrupt. Who are the "mega buck cohorts"? I have been working in the legal system for over 20 years, and I have not seen corruption nor do I believe there are vested interests or people with money controlling the outcome. I am sorry you have had such a negative experience

Q: I heard that one in four under 16s have separated parents. A campaign Kids in the Middle is planned to give them a voice. David do you know anything about this? (Maniac)

A: Hi (again). I have read about them, and the aims of the organisation sound to be just what is needed. It will provide information for children and young people. At the moment it's at the stage of seeking funding - let's hope they manage to raise the funds. They have a website- take a look.

Q:  My husband and I haven't written a will. In the event that something was to happen to both of us, who would our son go to? Would he automatically go to his grandparents - and if so - which set of grandparents? Is there a law on this kind of thing? (cookies)

A: Hi cookies. No, a child in this situation would not automatically go to the grandparents, and that's why I would always advise parents to nominate a guardian in their will - as that person will then have parental responsibility for the child on the death of the parent.

A guardian can be any adult the parent thinks is suitable and is willing to take the child on.

It is then expected that the guardian would step forward at the point of the parents' death to look after the child.
In the absence of a guardian, the immediate family will end up having to make arrangements, and if there is a dispute, the court will need to be asked to resolve it.

Q: In the eyes of the law - is it better to be married? (ticktock)

A: Hello ticktock. Depends for whom? For the child, the mother, the father?

From the father's perspective - the key is parental responsibility - father's acquire this by marriage, being on the birth certificate, or by agreement. So for them, the important thing (in terms of status, and if necessary applications to the court) is parental responsbility.

Q: Is the law changing about this? At what stage does the government start looking into changing how things work and giving grandparents more rights? Are the any other countries that you know of where the law is different and is more fair to extended families when it comes to situations like this? (LyndaW)

A: Hi LyndaW. The law may be changing - but is not envisaging giving grandparents more rights. In September 2012, the government published draft legislation and proposes introducing"'child arrangement orders" which are intended to focus more on resolving disputes rather than attaching labels such as residence and contact. There was talk of recognising the status of grandparents, and getting rid of the need for grandparents to apply for permission to make an application, but the government have not adopted this proposal - so sadly no change
As for other countries, I am sorry not to be more knowledgable. Others may be able to help on this.

Need more info? Check out our guide for grandparents seeking contact and residence. 

Q: David, we were not aware of the false allegations against me (attempted abduction), my son and our family (mental health issues and possible bipolar) until towards the end of the actual court hearing. I was not present.
Would we have to go to court again to challenge these allegations? (maniac)

A: It depends. if you have been denied contact as a result, you could apply for a contact order, and as part of that you would need to ask the court to reopen this issue and hear further evidence. Good luck with this.

Q: My question is about transfer of money between generations. The old are always being encouraged to downshift and my mother has recently done so and handed over to her children some of the proceeds of the sale of her house. She is independent and perfectly competent at the moment, although showing some signs of confusion (repetition etc) which worry us. In the worst case that she were to need care at some point, what would be the status of the money that had been handed over - would the local authority seek to reclaim it? What if it had been spent?! (closetgran)

A: Dear closetgran, this is a specialist area, and I would suggest you consult an expert in this field, sooner rather than later.

Q: I wonder if anyone has ever approached this subject from the perspective of the grandchildren. There is an organisation in the USA called AGA (alienation of grandparents anonymous). This situation unfortunately is worldwide and so many of us are in this sad situation. I am wondering what the children feel about this. Has anyone got experience of grandchildren coming to find their grandparents when they are older and did they see this alienation as a form of abuse ? I would be pleased to hear any success stories and to know how grandchildren feel about their parents not allowing them to see their grandparents. (lollybushell)

A: Dear lollybushell, the concept of alienation in its various forms is very familiar to family lawyers. I suspect many others will have experiences to share about this.

Q: Is it a myth that the mother nearly always gets custody of the child? (iMac)

A: Hi iMac, there are so many myths out there - where to start! As a fact, the majority of pre-school children are looked after by mothers (unless both parents working) When it comes to custody after a divorce/separation, this "fact" is probably reflected in the eventual arrangements agreed between the parents or ordered by courts. I am not sure it follows that courts are anti-fathers, or pro-mothers. But this is not a rule or a pre-determined outcome. The outcome should always be determined by the child's welfare. For older children, the picture and the outcomes are perhaps more varied.

 


 

 

 

 

 

 

 

 

 

 

 

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