Grandparents & other family members - what are your rights to contact with children of the family

Sunday Dec 04, 2016 Children

Perhaps your family member’s marriage has broken down and you're concerned that as a result your access to seeing the children may be affected. Perhaps the mother of the children is barely letting the children’s father have access let alone uncle bob and aunt betty getting a look in. Or perhaps the parents are still very much together but they’ve fallen out with you and are not letting you enjoy the contact you once shared with their children. Whether you’re a grandparent, aunt, uncle, sibling or step sibling, you still have rights. This blog will focus on how, why and the differences imposed by the law when the children’s parents have separated compared to when the parents are still together.

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First and foremost, before taking any legal measures you should always try and approach the parent with which the children are residing, whether it is one or both. Sometimes simply explaining and reminding them that you have no intention of getting involved in the breakdown of their relationship or explaining that your own break down with them is completely separated from the relationship you still want to so eagerly share with the children, can help. Putting this down in writing by way of an email or letter can often allow the parent[s] to take time to reflect, calm themselves and consider what is in the best interest of the children.

If it is the case that the relationship has broken down beyond such repair then parties are to arrange attending mediation before submitting any application’s to the court. Both parties have to be in agreement to attend mediation whereby an independent third party will sit and attempt to assist in advising the situation. If the parent[s] is still not agreeable then the family courts do recognise the need to promote and develop the role of Grandparents as well as other family members who have been a connection to the children. The application for such an order is made my completing the application form C100 [for a child arrangement order for contact]. Within your application you will have to seek ‘leave’ from the Court to make your application and proceed. In essence this is you requesting permission from the Court to move forward with your contact application; this is always required when a party who does not share parental responsibility of a child is instigated. Thereafter the onus is on you, the family member who does not have parental responsibility of the child to prove that prior to the separation or fall out with the parents you had an important and meaningful relationship with the children, and that it is in the interests of the children that it continues.

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When you attend Court on the matter the parent[s] may very well have strong feelings as to why they do not wish you to have contact with their children. They may argue that you have affiliations with the parent they have separated or raise their specific issues with you. Frequently what will therefore happen is that a CAFCASS officer will be appointed [Children and Family Court Advisory and Support Services] to look into what the concerns would be with you having contact with the children. In preparing this report it may entail the children being spoken to depending on if they are at an appropriate age, as well as speaking with you and the parents in order to assist the Court in coming to a decision.

If the Court does order contact to be permitted between you and the children and the parent[s] ignore's this direction the Court do not look to this favorably and the parent[s] can be reprimanded as a result.

One issue that non parents should be aware of when making an application to the Court for contact with children whose parents are still very much together and have therefore both fallen out with the applicant is the ‘Parental Autonomy Approach”. This was raised in the case Chapman v. Chapman 201 D.L.R (4th) (Ont. C.A). This case highlighted that where a family have broken down through separation, death or any other ‘reorganisation’ and extended family members contact with the children are suffering, then the courts may intervene. However if the family are still together and a decision has been made by the parents to limit or cease access to the children and it is not shown to have a detrimental effect on the children the courts are minded to respect the parents authority because they alone have a legal duty and responsibility for the children’s safety and welfare.

This case acknowledged that relationships with extended family members however are important and beneficial to children and if they are imperiled arbitrarily, due to the reorganization of a family after separation or death, then the courts may intervene.

If you are a family member seeking to be reunited with the children you once shared positive contact with then consider your rights within our Child Arrangement Order section and download one of our how to represent yourself packs for further guidance.