Grandparent’s are the cornerstone of family life in Ireland and play a very important role in the lives of their grandchildren. However, when marriages and relationships break down people often forget that it is the grandparents who are often the hardest hit as some grandparent’s may find themselves in a situation where they suddenly lose all contact with their grandchildren.
After a family breakdown grandparents may be prevented from taking their grandchildren on outings or providing childcare compared to what they had done in the past. This can be a very painful experience for grandparent’s especially when milestone events such as a birthday, a First Holy Communion or a Confirmation take place in their absence.
The aim of this article is to emphasise the positive aspects of grandparenting whilst recognising the difficulties that some grandparent’s may encounter in maintaining contact with their grandchildren after a family breakdown or indeed in any circumstances where grandparents are unreasonably denied a relationship with their grandchildren.
“Access” is the legal term given to the right to have contact with the grandchildren and difficulties concerning access for grandparents usually arise in the context of marriage breakdown or where the parents of the grandchildren are not married. Recent studies have indicated that this is particularly the case in relation to sons who are denied access to their children after a marriage or relationship breakdown. By default the grandparents (usually paternal) also lose access to their grandchildren when their children’s marriages or relationships breakdown.
The current legal position is that grandparents do not have an automatic right to access with their grandchildren and the process of obtaining access through the Courts is not an easy one.
The Constitution of Ireland does not recognise any rights of grandparents or other members of a child’s extended family. Legislation was introduced to rectify this situation and recognise the role of grandparents and their right to access with their grandchildren.
The Children Act 1997 provides that grandparents may apply to their local District Court for access to their grandchildren. It is important to note however that the Act does not give a right of access, it only gives a right to apply for access.
This process is twofold in that grandparents must first apply to their local District Court for “leave to bring an application”. In simple terms this means that a grandparent must first get permission from the Court before they can bring their application for access.
The Court takes a number of factors into consideration in deciding whether to grant permission to bring the application. The Court must have regard to:-
- The Applicants connection with the child
- The risk, if any, that the application will disrupt the child’s life
- The wishes of the child’s guardian are taken into account
If grandparents are successful at this first stage, they can then go on to make the second application to the Court for the access itself. The District Court Judge will hear evidence from both sides before making a decision in the matter.
It is worth noting that all family law applications are made “in camera” which means that they take place behind closed doors and they are completely private. No other family members, friends or members of the public will be permitted to remain in the Court room while the Judge hears the parties’ evidence.
There are a number of options open to grandparents if they decide to go down the route of making an application to their local District Court:-
- They may employ a Solicitor to make the application for them and represent them in Court
- They may make the application themselves through their local District Court Office and go on to represent themselves in Court
- They may apply to the Legal Aid Board for representation
Grandparents are often reluctant to take legal action because of the fear of causing further strain to what already may be a difficult relationship and because of the considerable costs of legal proceedings.
A balanced approach must be adopted before deciding to embark on litigation and it is important that all informal avenues are tried before resorting to the Courts.
Mediation can help families resolve disputes in relation to issues of access without recourse to the costly Courts system.
There are a number of mediation services available and the “Family Mediation Service” in particular is a free professional and confidential service which provides mediation support in a family law context. However, mediation is not compulsory and it is up to the individuals involved to decide whether mediation would be beneficial in their particular circumstances. If the parties engage in mediation but cannot negotiate a satisfactory mediated settlement then they may decide to abandon the mediation process and make an application to the Courts. They are not precluded from recourse to the Courts by virtue of initially engaging in the mediation process.
The mediation service will work with parents and grandparents together to help them sort out a mutually acceptable arrangement regarding access. Every effort will be made by these services to encourage all parties to engage fully in the mediation prior to going to the Courts for ultimately what will be a costly legal battle.
There are a number of organisations that can provide information and support for grandparent’s who are encountering difficulties in establishing and maintaining a relationship with their grandchildren such as Treoir and the Citizens Information Bureau.
Finally, grandparent’s must remember that the end of their own children’s marriages or relationships does not mean the end of their relationship with their grandchildren.
28 July 2010