Do grandparents have a legal right to see their grandchildren?

It is widely understood that Meghan Markle and her father, Thomas Markle, have a complicated relationship. They have reportedly not spoken in over three years and, within this time, Meghan has married Prince Harry and given birth to their two children, Archie (now two years old) and Lilibet (almost two months old). It is thought that Mr Markle has never met Prince Harry, Archie or Lilibet. Does Thomas Markle have any legal right to see his grandchildren?

What are grandparents rights?

In a recent interview with Fox News, Mr Markle said, “I will be petitioning the California courts for the right to see my grandchildren in the very near future”.

Whilst most grandparents would not find themselves at the centre of such a public dispute, some might identify with the wish to see grandchildren that they have never met. Others might have previously had a relationship with their grandchildren, which has then come to an end (because of a breakdown in their relationship with the grandchildren’s parents).

It is important to note that, as a grandparent, there is no automatic “right” to have contact with your grandchild. In fact, even as a parent, the court does not consider you to have “rights” in respect of your child; rather, the child has the right to have a relationship with the parent. The focus is on the responsibilities you have towards your child, whose welfare is paramount. This may of course be different in the US, but the focus here is on the law of England and Wales.

In England and Wales, Mr Markle’s application would be for a “child arrangements order” A child arrangements order regulates arrangements relating to:

  1. With whom a child is to live, spend time or otherwise have contact, and
  2. When a child is to live, spend time or otherwise have contact with any person.

So, for example, the application could be for an order that the grandchildren spend time with the grandparent on set days/times (for example, one Saturday per month).

Can grandparents apply to the Courts for access to grandchildren?

Before making an application to the court, a grandparent should endeavour to make arrangements with the parent(s) directly. If this is unsuccessful, mediation is the recommended next step, which – if successful – will very likely prove a cheaper and less acrimonious means of agreeing arrangements for the grandchild.

If mediation fails or is deemed inappropriate, the grandparent can make an application to the court.

Permission to apply to the court

There is a distinction between parents’ and grandparents’ ability to make an application to the court. Grandparents must first seek the court’s permission to make an application before they are able to proceed with the substantive application itself.

When considering whether to grant permission for a grandparent to make an application in respect of their grandchild, the court will consider:

  1. the nature of the proposed application;
  2. the applicant’s connection with the child; and
  3. any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it.

(There are additional considerations where the child is in the care of the Local Authority.)

The application process

If the court grants the grandparent permission to proceed with their application, the process generally mirrors that of a parent’s application to spend certain time with a child. All parties are very much encouraged to negotiate and to try to reach an agreement without the court’s assistance.

The grandchild’s welfare is the court’s paramount consideration. If the case proceeds to a ‘final hearing’, the court will have particular regard to:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  2. his/her physical, emotional and educational needs;
  3. the likely effect on the child of any change in his circumstances;
  4. their age, sex, background and any characteristics which the court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  7. the range of powers available to the court under this Act in the proceedings in question.

The possible outcomes

In cases such as Mr Markle’s, where the grandchildren have never met their grandfather, neither parent (reportedly) wishes the grandchildren to have contact with their grandfather, and both grandchildren are very young, the court might determine that it is not in the grandchildren’s best interests for an order to be made that they spend time with Mr Markle.

Alternatively, the court could be persuaded that it is in the grandchildren’s best interests to have a relationship with their grandfather and that this contact is best commenced whilst they are young, to avoid distress or confusion at a later date.

The court might also consider a different order would be appropriate – perhaps that Mr Markle have indirect contact with the grandchildren (i.e. sending letters, having phone/video calls, sending presents etc.). Such contact may then progress to direct (i.e. in person) when appropriate for the children.

In cases where grandchildren have spent regular time with their grandparent(s), have a good relationship with them, and perhaps have expressed a wish to see them, the court might well consider that it is in the grandchildren’s best interests for the order to be made.

How Moore Barlow can help you

Of course, all cases depend on their individual circumstances and, fundamentally, each child’s individual needs.

If you are a grandparent who is having difficulties spending time with your grandchild(ren), or a parent who wishes to prevent the same, please contact our family solicitors to discuss your individual needs.