The final Family Justice Review has been published with significant publicity in the media. Initial focus has been on the unacceptably long delays in childcare proceedings in the family courts and the rejection of using legislation to promote shared residency between parents when a relationship ends.

One less publicised area of the report focusses on access rights of grandparents in relation to grandchildren after family breakdown. The Grandparents Association estimates that about 1 million children do not see their grandparents because families have lost touch or separated.[1]

It may come as a surprise to many who have not been affected by such issues to hear that under the current legal system, grandparents are required to seek permission from the court before being allowed to apply for contact with their grandchildren where contact is being refused. That means that there are two separate legal processes that have to be undertaken – first going to court for permission to apply and second, the substantive application itself. The Review considered whether grandparents should instead be granted a special status and enjoy an automatic right to apply for contact.

Grandparents hoping for a significant shift in the current system will be disappointed by the report’s conclusion that the need for grandparents to apply for permission of the court before making an application should remain.

So why not make it easier for grandparents to see their grandchildren when contact is being denied? The report states that while recognising the importance of relationships between grandparents and grandchildren, the panel felt that “the requirement for grandparents to seek permission of the court before making an application is not overly burdensome and should remain.”

The report reiterates that contact is a right of the child and not of the adult – whether that be a parent or a grandparent. The panel did not believe that the courts refuse permission unreasonably or that seeking permission is slow or expensive for grandparents. It goes on to say that the requirement to seek permission “prevents hopeless or vexatious applications that are not in the interest of the child.”

The experience of grandparents may suggest otherwise. Andrew Percy MP, who last year initiated a Private Members Bill before Parliament titled Grandparents (Access Rights),[2]referred to one of his constituents who had to use substantial amounts of her own finances and go through a legal process that lasted more than a year to gain access to her grandchildren. While this grandparent was ultimately successful, it is clearly a far from perfect solution for those who have a genuine wish to see their grandchildren but are prevented from doing so by misguided parents.

Interestingly, the Association of Her Majesty’s District Judges, who would make the decision on such applications, agreed with the retention of the requirement to seek permission to apply in its consultation response.

One small silver lining for grandparents is that recent legislation means that there will no longer be a separate court fee payable for permission of the court and the substantive application – instead only one fee will be payable.

So has an opportunity to ease the legal burden on grandparents and potentially free up the courts at a time of extreme stress on the legal system been lost or is the retention of the need to seek permission a reasonable and proportionate measure to prevent hopeless applications?

It will be interesting to see what comes of the second reading of Andrew Percy’s Bill later this month but it would seem that he could face an uphill struggle in the face of the report’s conclusions that do not sit comfortably with the ‘family-friendly’ claims of his own government. 

[1]http://www.grandparents-association.org.uk/index.php?option=com_content&view=article&id=174&Itemid=4

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