The non-resident parent in a child contact case should always ASK the Court to include in the Order that the grandparents may also have contact with the child

The non-resident parent in a child contact case should always ASK the Court to include in the Order that the grandparents may also have contact with the child and it may be granted even if the grandparents would not otherwise be entitled to such an order.

In a recent case (G (A Child) [2018] EWCA Civ 305) there was an issue raised regarding the rights of the biological grandparents of a child to have contact with the child. It was decided that even when the grandparents were not a party to the proceedings the court could make an order allowing them contact, as this could be in the best interests of the child.

A same-sex female couple had a child, Aidan, born to them in 2012 by artificial insemination thanks to a sperm donation from a friend (Brian). Unfortunately, the degree of involvement that the donor would have in the child’s life was never properly agreed, as Brian believed he would see the child regularly, whereas the couple thought he would simply have the same amount of contact that he would have with any child of a friend.

Brian applied for permission to apply for a Child Arrangements Order in April 2016 in order to see Aidan more regularly, and in June 2017 the high court judge determined the frequency of contact Brian was to have with Aidan. The judge largely followed the advice of Aidan’s guardian, who recommended that contact takes place between Aidan and Brian seven times a year, even though Brian was not a legal parent of Aidan, and that Brian’s parents should be able to join in the contact twice a year, and could send birthday and Christmas cards. The judge reasoned that the grandparents’ contact with Aidan was “to give… a greater sense of an understanding of his paternal lineage”.

Aidan’s mother appealed this decision, arguing that the judge had made a legal error in imposing the order in favour of Brian’s parents. According to the appellants, Brian’s parents had no legal or psychological relationship with Aidan, and as they were not a party to the proceedings they should not have been allowed to apply for an order, let alone have contact granted.

The Court of Appeals ruled that courts are allowed to make an order in regard to a third party, even when there is no relevant application, according to s.10(1)(b) of the Children Act 1989, without need for the court to go through the mental process outlined in s.10(9).

The court’s power to make an order under s.10(1)(b) is not limited by the requirement to undertake a “preliminary mental exercise”, as this would introduce an unnecessary layer of complexity to proceedings. Therefore, the high court judge was entitled to follow the Guardian’s reasoning and allow contact between Aidan and Brian’s parents, even though they were not a party to the proceedings.

Ask and it may be given.

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