Grandparent by name, parent by nature – the importance of acquiring elevated status

Grandparents can play a crucial role in a child’s life. They may step in to help parents in a period of difficulty in the short term, although what begins as a temporary arrangement can quickly become long-term. In other cases, particularly where parents are very young or an unplanned pregnancy occurs, grandparents may take on a parental role from the very beginning of a child’s life.

Grandparents who have taken such active roles in their grandchildren’s lives can feel disenfranchised when they unexpectedly find themselves before the Family Court for the first time.

Even where they have fulfilled the role of parent for all, or the majority of, the child’s life, it can sometimes feel to grandparents that the Family Court does not regard them in the same way as the child’s parents, even where those parents have not had the same level of day-to-day involvement in the child’s life.

What rights do grandparents have?

Many clients, both parents and grandparents, are surprised to find out that grandparents, even those who have effectively cared for the child as a parent, do not have automatic legal rights to see that child, take them away on holiday, or have a say in key aspects of their life, such as schooling, religious upbringing, or medical treatment.

Grandparents often (although again not always) need to seek the court’s permission before making a substantive application for a child to live with or spend time with them, or for another form of order relating to the child. In practice, the application for permission is usually made alongside the substantive application and, where appropriate, will be considered by the court at the same time.

Nevertheless, this additional step for permission can feel significant for grandparents who are, all but in name, acting as parents, and yet are treated differently from the child’s legal parents.

Once they have made their application (both permissive and substantive), grandparents can sometimes face an uphill battle in securing the outcome that they seek, even where the child confirms that this is also what they want.

How is a decision about the child made?

Ultimately, the court will make an order in line with what it considers to be in the best interests of the child. The court determines what is in the child’s best interests by reference to the welfare checklist set out in section 1 of the Children Act 1989. Whilst a child’s wishes and feelings are a relevant consideration, they are not the only one and are rarely determinative, particularly for younger children.

Another relevant factor when determining what is in the child’s best interests is the likely effect on the child of any change in circumstances. This is where, although it is not a formal legal concept, grandparents who have some form of ‘elevated’ status may be viewed differently from those who do not.

What is elevated status?

Elevated status is not a legal term. However, it is something that many grandparent clients feel they lack when disputes arise.

On the flip side, parent clients often have strong views about whether a grandparent should, or should not, have this status, particularly in the case of separated parents where one parent wants the grandparent to continue caring for the child and the other wants to care for the child themselves.

Elevated status can take many forms, each of which carry different levels of rights and responsibilities (and so offer a further hierarchy within the elevated status itself).

Examples include:

• a child arrangements order that the child lives with, or spends time with, the grandparent(s), with or without parental responsibility;
• a standalone parental responsibility order or agreement;
• a specific issue order or prohibited steps order (requiring or preventing a particular action, for example that the child remain at their current school or not be relocated abroad);
• a special guardianship order;
• adoption.

The importance of taking early advice

Some grandparents take early advice and steps to acquire a form of elevated status even when on the face of it, most people would consider that there is no need to do so. There may be no conflict within the family, and they may continue to have the parents’ full agreement to continue caring for the child.

After all, why fix what isn’t broken?

The difficulty is that this consent can be withdrawn at any stage by one or more people who hold parental responsibility for the child.

 Family dynamics can be complicated, and even families who have historically navigated conflict well can experience unexpected breakdowns in relationships. For example, parents or grandparents may separate or divorce, new partners may be introduced, there may be a death in the family, or disagreements may arise between one or more family members (or perhaps more catastrophically, between the entire family).

Grandparents who have acquired some form of elevated status at an early stage, when there is no conflict (or minimal conflict), often find themselves in a stronger and more protected position if contested Family Court proceedings arise following a family breakdown.

Despite this, many grandparents do not seek advice until difficulties have already developed.

The importance of acquiring an elevated status

A number of cases, when compared on paper alone and stripped of their legal complexities, produce outcomes that may surprise those without legal training. Sometimes, one set of grandparents succeeds in an application for the child to live or spend time with them, while the other does not.

One key factor that can make a difference is whether the grandparents already have some form of elevated status in relation to the child.

It is for this reason that grandparents who are parents in all but name are strongly encouraged to take early advice in relation to their rights and responsibilities for the child, to see if it is appropriate to secure a formal legal status that reflects their role in the child’s life at an early stage.

It is generally much easier for a grandparent to obtain such orders when all relevant parties are in agreement. Once that elevated status is in place – subject to where in the hierarchy listed above they fall – they are then more likely to succeed in the event of any future proceedings upon a family breakdown.

Of course, there are always exceptions. Having elevated status does not guarantee success for a grandparent in any future proceedings. Equally, the absence of elevated status does not mean that a grandparent who is being denied time with a child, or who is involved in any other dispute, will not be successful.

Every case will be judged on its own facts, and ultimately a decision will be made by reference to the child’s best interests. However, the earlier advice is taken, the better.

If you would like further advice either as a grandparent, parent, or other interested person in a child’s life, then please contact a member of the family team. We have experience advising and acting for both grandparents and parents.