Family Law, Divorce & Children

The rights of grandparents under the law are a significant source of debate for both professionals and those impacted by current legislation.

Grandparents and grandchildren often have important and formative relationships that are incredibly meaningful and beneficial for those involved, regardless of the relationship between a grandparent and their child.

Your child’s reasoning

There may be any number of reasons why your child does not want you to see your grandchildren, but some of the most common reasons include:

• A poor relationship with your child, causing them to distance their whole family from you
• A belief that you will be a negative influence on your grandchild
• A concern that you may harm your grandchild or allow them to be harmed
• The grandchild’s other parent does not want you to see them.

As you can see, your child will often be acting in what they believe to be their, and your grandchild’s, best interest, but that may not always be the case.

Discussion is the best policy

With this in mind, it’s important that you first try to negotiate and discuss the situation openly with your child to reach an arrangement.

If your grandchild is old enough, all parties should be encouraged to take their wants and needs into account, particularly if you cannot see them due to a rift between you and your grandchild’s parent.

It may be that supervised visits can be organised, or you may be able to address any other issues that cause concern over the wellbeing of your grandchild.

You may also try mediation with a qualified family mediator if discussions and negotiations are too difficult or not successful.

Your rights in law

If an informal arrangement cannot be achieved, you may turn to your rights under the law.

In England and Wales, grandparents do not have the automatic right to see their grandchildren – but you are able to apply to the Court for permission to make an application (a Child Arrangement Order) to spend time with your grandchildren in the same way a parent can.

The courts are inclined to support contact if it is deemed beneficial for the child’s emotional and psychological well-being, and therefore in their “best interests”.

Under the Children Act 1989, once permission has been granted, then a child arrangement order may be sought and put in place by the courts to allow certain people, including grandparents, to see the child and to outline when and how they may have contact with the child or children.

This will be affected by many factors, including:

• Your grandchild’s needs and wishes and feelings
• Their age and understanding
• Their risk of harm
• The ability of their parents to meet their needs
• The effect on your grandchild of a change in circumstances
• Any previous significant relationship with you

For further advice on seeing your grandchildren or other family disputes, please contact our Family Law team today.

We all know how difficult it can be when a couple decide to divorce or end a civil partnership, or cohabiting relationship particularly when children are involved.

However, with around 42 per cent of marriages in the UK now ending in divorce, and with half of these involving children under the age of 16, it is a part of life that requires a normality all of its own.

This has led to the advent of birdnesting, the latest approach to family living arrangements following a divorce or separation.

Under this arrangement, separated partners retain the main family home and purchase a smaller rented residence such as a flat. Each parent lives with the children in the house for a set period, often switching places weekly.

During this time, the other lives in the smaller property, while the children consistently live in the main home to minimise their disruption.

This may seem like a strange approach to post-separation living arrangements, but family law practitioners are seeing a marked increase in its popularity – and it’s becoming clear why.

A modern approach to co-parenting

Under UK family law, each child has two parents with parental responsibility – typically the child’s biological mother and the child’s biological father as listed on the birth certificate.

A significant part of parental responsibility is the requirement to provide a safe home for the child, which can be made more difficult when parents separate, as this can result in:

• A decrease in total household income
• The sale of a family home
• Conflict over assets, which may include a property

Beyond this requirement, many parents will each want to spend time with their children and take an active role in their protection and upbringing.

Unfortunately, the housing market is not conducive to purchasing a second family home, particularly in areas where housing costs are steep like the South East.

Birdnesting offers a more cost-effective alternative to maintaining two family homes. It adds only the cost of renting a small property to the cost of running the family home, rather than purchasing a second.

It also offers a way for parents to meet their parental responsibilities while maintaining stability in a child’s life.

Maintaining stability in more ways than one

One of the most significant ways that divorce or separation impacts children is through disruption to their lives.

Moving between houses to spend time with one parent or the other is a major contributor to this, as well as the resulting distress from losing their familiar home, changing schools or losing touch with friends.

Stability and reducing disruption are arguably at the core of much of the legislation surrounding children’s matters – the requirement to regularly attend school, parental responsibility, protection from harm – so it is a strong argument in favour of a birdnesting arrangement.

The challenges of birdnesting

However, birdnesting is only suitable in certain situations.

It requires substantial financial ties between former spouses as they continue to own a property together, and have to navigate who pays what in terms of mortgage, rent and utility bills, food, which may not be appropriate when a separation has not been amicable.

This could, in fact, lead to further disputes and ultimately have a negative impact on the wellbeing of the children involved.

A continued financial relationship may also make divorce proceedings and asset separation more complex, although this can be worked around if a birdnesting arrangement is mutually agreeable to both parties.

Finally, there is the question of other relationships. If one parent enters a new relationship, there will need to be a discussion over whether the new partner is permitted to stay in the main home and whether the arrangement can continue if one parent wishes to move away from the area.

A verdict on birdnesting

Birdnesting has the potential to be a revolution in how parents live with and see their children after a divorce or separation.

That said, it absolutely must be a voluntary and collaborative arrangement. Otherwise, it is likely to fail and cause the very disruption it aims to avoid.

As with any separation, arrangements between parents should be detailed and all-encompassing, to include:

• Co-parenting arrangements
• Who bears the responsibility for which costs
• Time spent in the main home/with the children
• Rules for guests and family within the main home
• Rules for holidays and overseas travel

Ultimately, it is an innovative concept that reflects the changing attitudes to divorce in the UK as something which is to be accepted and worked around.

While it is certainly not the only co-parenting solution which prioritises the needs of the children, where a birdnesting arrangement is in place and functioning, it is indicative of a wider respect between parents and a willingness to put the good of the child first.

For advice on living arrangements and children’s matters after a divorce or separation, please contact me at KarenBishop@palmerslaw.co.uk.

This month marks the 10-year anniversary of the first same-sex marriages in some parts of the UK.  On 29^th March 2014 Parliament passed The Marriage (Same Sex Couples) Act 2013 which introduced civil marriage for same sex couples in England and Wales.

To mark the first decade of this landmark ruling, our Family Law expert, Karen Bishop, takes a look at the family rights of same-sex couples in England and Wales.

Marriage

Since 29 March 2014, same-sex couples have had the same legal right to marry as opposite-sex couples.

This also means that they have the same right to divorce and separation.

However, certain institutions such as religious organisations are permitted under the law from prohibiting same-sex couples from marrying in, for example, a certain church.

While some may consider this discriminatory, religious institutions are allowed to deny marriage within their churches or other property to any couple if they feel that the couple does not align with their values.

This also applies to opposite-sex couples who do not follow that religion but, for example, live near to a certain church or religious building and so wish to marry there.

The legislation also enabled civil partners to convert their civil partnership into marriage.

Children

The rights to same-sex couples regarding children can be more difficult to navigate.

This is largely due to the fact that the law historically defines legal parenthood in relation to one biological mother and one biological father.’

However, the law is now evolving to recognise a range of family dynamics and better suit the practicalities of many families.

Consider the example of legal parenthood.

Only two people can legally be the parent of a child, although more than one can hold parental responsibility, for which the most important roles are to;

• Provide a home for the child
• Protect and maintain the child

They are also responsible for other matters including to;

• Maintain the child financially
• Choose and provide for the child’s education
• Consent to medical treatment
• Agree to any change of name

For opposite-sex couples, legal parenthood is automatically assigned to the child’s birth mother and the biological father of the child will usually also have it, provided he is either listed on the birth certificate or is married to the child’s mother.

But how does this work for same-sex couples?

If the couple involves the person who has given birth to the child, then they are automatically the child’s legal mother.

If the birth mother is married to her partner or in a civil partnership, her partner automatically becomes the second legal parent.

This can also be done through a UK-registered artificial insemination clinic, allowing the birth mother to give written consent for her partner to become the other legal parent, regardless of whether or not the partner is the child’s other biological parent.

Alternatively, if the mother’s partner legally adopts her child, they will then become the second legal parent.

For male same-sex couples, the process is a bit more complex.

Many male same-sex couples choose to use a surrogate to have a child. However, the surrogate will legally become the child’s parent and, if she is married, her partner will be the child’s other parent.

This can be remedied after the birth through a Parental Order. It’s important to bear in mind that the surrogate and her spouse must both agree to this and consent can be withdrawn at any time before the Order is put in place.

Equality before the law?

While it’s clear that same-sex couples enjoy broadly the same legal rights as opposite-sex couples, the law still contains certain issues which can present a challenge, particularly when it comes to a child’s legal parents.

The law is constantly evolving to reflect the fact that families are increasingly diverse.

We stay up to date on new developments and we’re here to help if you and your family face discrimination or simply confusion over your legal rights.

For same-sex couples seeking advice on family law and their rights, please get in touch with us today.