grandparents’ rights and grandparents’ campaigns

17

Grandparents’ rights and grandparents’ campaigns

Felicity Kaganas* Grandparents’ pressure groups have been campaigning for enhanced legal rights in relation to grandchildren. This article examines those campaigns and their outcomes in the context of contact disputes with parents. Although the groups have not achieved their objective of legislative change, it is suggested that they have made gains in other ways. In England and Wales grandparents have been included as significant figures in the new parenting plans and in Scotland there is a new charter for grandchildren. It is argued that grandparent pressure groups have succeeded in establishing an extra-legal norm favouring contact between grandparents and grandchildren. It is suggested that this success cannot be attributed to empirical evidence demonstrating the benefits of such contact; the evidence is not conclusive. Rather it can be attributed to strategies aimed at reconstructing children’s welfare to include ties with grandparents. In addition, the welfare principle has been re-interpreted to designate as harmful any resistance on the part of resident parents, usually mothers. Grandparent groups have benefited directly and indirectly from the campaigns of fathers’ rights groups which have not only emphasised contact and continuity, but have politicised the issue and have opened the way to the condemnation of mothers who oppose contact. The effect of the success of these campaigns is likely to be increased pressure on resident mothers to accede to contact. This may be to the detriment of both mothers and children.

INTRODUCTION ecent years have seen an awakening of interest within the legal arena and among policy makers in Britain about the legal status of grandparents in relation to their

grandchildren.1 This interest, it would appear, is largely a result of campaigning by grandparents’ groups.2 Pressure groups have been set up to lobby for greater recognition of the importance of grandparents and the extended family as potential carers of children who would otherwise be placed with unrelated foster carers. There * Reader, Brunel Law School, Brunel University. This article is based on a paper written with Christine Piper and presented at an ESRC seminar in

December 2005 (see ESRC Seminar Series, Changing social norms, changing family law? Rights and responsibilities for partners, friends and carers (University of Bradford, 2006)). I am especially grateful to her for her help. I am also grateful to Alison Diduck, Daniel Monk and to the anonymous referee for their comments on an earlier draft of this article

1 There also appears to be some interest among academic researchers. There is, for example, a Research Training Network project, funded by the EU, entitled ‘Grandparenthood and Intergenerational Relationships in Aging European Populations’. See http://www.gold.ac.uk/research/rtn. The Department of Social Policy and Social Work at Oxford University has held a number of seminars on the topic of grandparents (http://www.apsoc.ox.ac.uk/Seminars.html).

2 See, for example, Scottish Social Attitudes Survey 2004. Family Module Report, at para 5.2.

R

18 Child and Family Law Quarterly, Vol 19, No 1, 2007

is also pressure for financial assistance for those grandparents who are acting as carers. And, there are the campaigns with which this article is concerned: campaigns for improved rights in relation to contact with grandchildren. While the lobbying by grandparent groups has so far failed to achieve the objective of winning new legal rights or improved legal status in contact disputes, it has, nevertheless, led to important gains for grandparents. Government ministers and policy makers appear to have accepted, almost as received wisdom, that contact with grandparents is generally good for children. Grandparents feature in the new parenting plans devised for use in England, Wales and Scotland, and these plans make it clear that parents are expected to give serious consideration to grandparent contact. Moreover, in Scotland there is now also a charter for grandchildren extolling the virtues of grandparents and promoting contact. In effect the new focus on grandparents has created a non-legal norm favouring grandparent contact, a norm that has the potential to impact on professional practice and also on mediation and negotiation in disputes between parents and grandparents. This article will first examine these policy and normative outcomes and it will then seek an explanation for them. It will argue that the genesis of the new non-legal norm cannot be attributed to any child welfare knowledge demonstrating that, in general, children benefit from contact with grandparents. Rather, what has led to the policy making grandparent contact more of a priority is the campaigning of grandparent groups aided, to some extent, by fathers’ rights groups. Finally, this article will suggest that the new emphasis on the grandparent/grandchild relationship may prove detrimental for resident parents, usually mothers.

GRANDPARENT GROUPS There are a number of groups representing grandparents3 and not all are lobbying for contact rights.4 For example, some are far more concerned with the position of grandparents caring for grandchildren as surrogate parents. Among these is Age Concern, which promotes recognition of the role of grandparents by professionals and public authorities.5 Some groups, such as the Grandparents’ Association (formerly the

3 For a brief overview of the background to the creation of these groups, see F. Kaganas and C. Piper,

‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 Int J of Law, Policy and the Family 250. Reasons for their establishment include perceived difficulties in maintaining contact with grandchildren in the context of a high divorce rate.

4 There is no information available on the demographic composition of the membership of the various groups and no indication that there are significant differences, apart from their location, between them.

5 Age Concern, Age Concern Policy Position Paper. Grandparents. Grandparents Plus, which provides training on kinship care and ageism for people working with families, also concentrates on lobbying for improved provision for grandparents who are caring for grandchildren. See: Grandparents Plus, ‘Grandparents Need more Support with Childcare’ (2005) (www.grandparentsplus.org.uk).

The Family Rights Group (FRG) similarly seeks to gain help for carers who are family or friends. They want flexible working for carers; financial assistance; accommodation; and support such as respite care (Supporting Family and Friends Carers. An Agenda for Action). FRG is also, among other things, concerned with promoting placements with family members of children who cannot live with their parents.

The concerns of these groups are apparent from a ‘manifesto’ issued jointly by the Grandparents’ Association, Grandparents Plus and the FRG, which contends that the extended family is neglected in social policy and social work practice. These groups call on the Government to ‘develop policies and practice that recognise and support the wider family’s role in caring for children’ (Celebrating Grandparents and the Extended Family – A Call to Action (2005) (http://www.grandparentsplus.org.uk/ news/manifesto_08_03_05.doc).

Grandparents’ rights and grandparents’ campaigns 19

Grandparents’ Federation), Grandparents Plus and, to some extent, the Family Rights Group, are concerned to highlight the contact issue as well as the needs of grandparents who are carers; they lead the campaign to remove the procedural requirement of leave stipulated in the Children Act 1989.6 The most high profile and vociferous group in Scotland, Grandparents Apart Self Help Group (GASH), concentrates mainly on campaigning vigorously for a presumption in favour of contact between grandparents and their grandchildren.

THE LAW Grandparents in England and Wales were invested with special status giving them standing to apply for access as of right in certain circumstances by the Domestic Proceedings and Magistrates Court Act 1978 and the Guardianship of Minors Act 1971. However, apart from this limited form of statutory recognition, which was abolished without any effective opposition by the Children Act 1989,7 grandparents have not been singled out for preferential legal treatment in relation to contact with their grandchildren in the UK.8 In Scotland grandparents are usually entitled to seek an order as persons with an interest. Most grandparents fall within this category and so qualify to apply for contact.9 In England and Wales, they can apply for a contact order under section 8 of the Children Act 1989, but will normally first need to obtain the leave of the court under section 10 in order to institute proceedings.10 In both jurisdictions, statute decrees that the welfare of the child has to be paramount in reaching a decision as to whether to order contact or not. However, in relation to the leave requirement under the Children Act 1989, the court has to make its decision on the basis of the checklist in section 10(9). In addition to that checklist, the court is also entitled to consider the welfare checklist in section 1(3) but the child’s welfare is not the paramount consideration. It appears that the more significant and meaningful the relationship between grandparents and grandchild, the more likely it is that the grandparent will qualify for leave.11 But when it comes to the substantive hearing, grandparents who have surmounted the leave hurdle may still not get contact; judges have thus far been reluctant to make an order against the parents’ wishes.12 And for those grandparents

6 The leave requirement and the campaign are discussed below. 7 See further F. Kaganas and C. Piper, ‘Grandparents and the Limits of the Law’ (1990) 4 Int J of Law

and the Family 27; G. Douglas and N. Lowe, ‘Grandparents and the Legal Process’ [1990] JSWL 90; N. Lowe and G. Douglas, Bromleys’ Family Law (Butterworths, 9th edn, 1998), at p 436.

8 For a fuller explication and analysis of the law, see F. Kaganas and C. Piper ‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 Int J of Law, Policy and the Family 250. For an overview of the law in North America and Canada, see D. Goldberg, Grandparent-Grandchild Access: A Legal Analysis (Department of Justice, Canada, 2003). It is notable that, although there is a reluctance by legislatures and courts to interfere in the nuclear family, particularly when the parents of the children are cohabiting, Art 611 of the Civil Code of Quebec provides that parents should not, ‘without grave reason’, be permitted to interfere with the grandparent-grandchild relationship (see Goldberg, at pp 7 and 32)

9 Children (Scotland) Act 1995, s 11. 10 Compare the Adoption and Children Act 2002, ss 26, 144 and 1(4)(f). 11 See Re M (Care: Contact: Grandmother’s Application for Leave) [1995] 2 FLR 86, at 95. 12 See F. Kaganas and C. Piper ‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 Int J

of Law, Policy and the Family 250, at p 254. See also C. Smart, V. May, A. Wade and C. Furniss, Residence and Contact Disputes in Court. Vol 1, DCA Research Series 6/03, (DCA, 2003). The authors suggest that courts seemed unlikely to order contact against a parent’s wishes. However they


who do get an order, enforcement may be a problem.13 In this respect, however, the new sections 11A–P of the Children Act 1989 providing for contact activity directions and conditions, monitoring and also enforcement orders in the form of orders to perform unpaid work, may make it far more difficult for resident parents to resist contact. How willing courts will be to use these measures for the benefit of grandparents remains to be seen. There have been suggestions that grandparents denied contact might be able to have recourse to the Human Rights Act 1998 and invoke Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. However, in order to rely on Article 8, the claimant has to show the existence of family life and, in the case of grandparent-grandchild relationships, this is not assumed. What is required is evidence of some form of actual family life: a close link such as frequent contact.14 Even if family life is established, the court may find that Article 8 has not been violated.15 Constructions of welfare, ideas about the privacy of the nuclear family and parental authority as well as legal interpretations of the relationship between welfare and rights can present obstacles to grandparents in the legal arena. Indeed, it appears that very few cases reach the courts at all.16 Grandparent support groups contend that the law makes it too costly to litigate and that those working in the legal system are failing to appreciate the importance of the grandparent-grandchild relationship. As a consequence, in England there are groups that are calling for the abolition of the leave requirement. In Scotland the demand has been for a presumption in favour of contact. However, the Family Law (Scotland) Act 2006 has been enacted with no legal rights being created for grandparents and, although it has promised to review the law, the Government has thus far shown no enthusiasm for changing the law in England and Wales.17 Nevertheless the grievances aired by grandparent campaigners have steadily moved up the policy, if not the law reform, agenda.

found that, although the court made an order for ‘no order’ in one case out of the seven in their sample, the rest of the applications were withdrawn and the cases settled (at pp 28–29).

13 See, for a summary of the difficulties faced by courts in enforcing orders in the context of contact between children and fathers, V v V (Contact: Implacable Hostility) [2004] EWHC Fam 1215, [2004] 2 FLR 852 at paras [7]–[10]. See also F. Kaganas and C. Piper ‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 Int J of Law, Policy and the Family 250, at pp 263–264.

14 See Price v United Kingdom Application No 12402/86 (1988) 55 DR 224; Boyle v United Kingdom (1994) 19 EHRR 179. See also S and S v United Kingdom (Application No10375/83) (1984) 40 DR 196; X, Y and Z v United Kingdom [1997] 2 FLR 892, at para [52]. But see S and G v Italy (Cases 39221/98 and 41963/98) [2000] 2 FLR 771, at para [221] and L v Finland [2000] 2 FLR 118, at para [101]. See also R (L and Others) v Manchester City Council; R (R and Another) v Manchester City Council [2001] EWHC Admin 707, [2002] 1 FLR 43.

15 See F. Kaganas and C. Piper ‘Grandparents and Contact: “Rights v Welfare” Revisited’ (2001) 15 Int J of Law, Policy and the Family 250. See, on the leave requirement, G. Douglas, ‘Case Commentary: Re J (Leave To Issue Application For Residence Order) – Recognising Grandparents’ Concern Or Controlling Their Interference?’ [2003] CFLQ 103. There are arguments to the contrary. See, for example, J. Herring, ‘The Human Rights Act and the Welfare Principle in Family Law: Conflicting or Complementary?’ [1999] CFLQ 223; J. Fortin, ‘Accommodating Children’s Rights in a Post Human Rights Act Era’ (2006) 69 MLR 299.

16 See C. Smart and V. May, ‘Residence and Contact Disputes in Court’ [2004] Fam Law 36. See also L. Drew and P. Smith, ‘The Impact of Parental Separation/Divorce on Grandparent Grandchild Relationships’ (1999) 48 Int J of Ageing and Human Development 191.

17 There is no sign that the Government will remove the leave requirement (see below) and there is no prospect of new substantive rights. See, for example, Hansard, HC Written Answers, col 1052W (7 September 2004).


THE NEW NORM Certainly grandparents have had a place on the policy agenda for some years. For example, as early as 1998, Supporting Families, prepared by a specially constituted Ministerial Group on the Family, announced government plans to cast grandparents as key players in initiatives to support ‘the family’ and to strengthen communities. Since then, an All Party Parliamentary Group for Grandchildren has been established18 and it is supposed to ‘work with government to develop policies and practice that recognise and support the wider family’s role in caring for children’.19 Also, the Children and Family Court Advisory and Support Service (CAFCASS) has indicated that it has a strategy of engagement with groups representing parents, children and relatives.20 But the focus has tended, throughout, to be on grandparents as carers. There has been little impetus within the Government to amend legislation relating to contact. There has recently, however, been some change in the way grandparent contact disputes are dealt with by the courts. It has been suggested that:

‘reported decisions have revealed that the courts are now giving greater (or more explicit) acknowledgement to the great significance, in the process of planning for children, of family members in general and grandparents in particular.’21

In Re J (Leave to Issue Application for Residence Order)22 the court observed that:

‘it is important that trial judges should recognise the greater appreciation that has developed of the value of what grandparents have to offer, particularly to children of disabled parents. Judges should be careful not to dismiss such opportunities without full inquiry. That seems to me to be the minimum essential protection of Arts 6 and 8.’

Commenting on this case and on the judgment in Re H (Children)23 Talbot and Kidd24 suggest that there is in practice a presumption that grandparents should be given leave. So, on this view, it appears that the leave requirement has not had the effect of impeding grandparents significantly in their efforts to gain contact.25 Even so, the contention of groups such as the Grandparents’ Association is that the need to obtain leave causes delay, increases costs and so deters some aggrieved grandparents. Their calls for its removal have now, it seems, begun to receive serious attention. In its Report published in March 2005, the Constitutional Affairs Committee examining the operation of the Family Courts recommended the abolition of the leave 18 To which the grandparents’ manifesto has been presented (http://www.frg.org.uk/GP/gpcarers.asp). 19 Grandparents Association, Stop Press (2005) (http://www.grandparents-association.org.uk/ stoppress.asp) 20 A. Douglas, Open letter to Groups Representing the Interests of Fathers in Private law (2005, see

http://www.cafcass.gov.uk/english/Media/press/Open_letter_14Jun05.pdf). 21 C. Talbot and P. Kidd, ‘Special Guardianship Orders – Issues in Respect of Family Assessment’ [2004]

Fam Law 273, at p 274. 22 [2003] 1 FLR 114, at para [19]. 23 [2003] EWCA Civ 369 (unreported) 20 February 2003. 24 C. Talbot and P. Kidd, ‘Special Guardianship Orders – Issues in Respect of Family Assessment’ [2004]

Fam Law 273, at p 274. 25 Leave can be a ‘quick paper exercise’. In most cases there is no objection in response to the letter

asking parents whether they object to leave being granted. If there is an objection, it is usually found to be an objection to contact rather than leave (R. Nugee (ed), Relative Values … Missing out on Contact (Grandparents’ Association, 2003), at p 5).


requirement.26 In addition, in a Westminster Hall Debate, a Conservative MP,27 Stewart Jackson, forcefully put the case for abolition.28 The response of the Parliamentary Under-Secretary of State for Education and Skills was to indicate that the Government was not convinced of the need to alter the law.29 Nevertheless, she reiterated the commitment made by the Government during the passage of the Adoption and Children Bill to consider what changes should be made to the law to ensure that the leave process does not present a ‘huge barrier’ to grandparents. She anticipated that this review would be completed during 2006.30 Although the law relating to leave may not change much or at all, public statements point to an emerging norm that grandparents should have contact with their grandchildren. It appears that politicians and policy makers now see grandparents as having a special and valued role in the family.31 This perception is expressed, for example, in the comments of Baroness Greengross, Chair of the All Party Parliamentary Group for Grandchildren. She talks of ‘how excellent intergenerational and grandparental relationships are for children’ and continues:

‘Children’s interests are primary and one of the best ways of representing them is to make sure that children have some idea of the roots of their family, of where they came from and who is passing on the culture and mores of all the homely, family things that create families in society.’32

The speech of the Parliamentary Under-Secretary too attests to the way in which the discourse of policymakers has come to adopt, amost as something taken for granted, the view that grandparents are a positive and important part of children’s lives:

26 House of Commons Constitutional Affairs Committee, Family Justice: The operation of the family

courts. Fourth Report of Session 2004-5. Vol 1 (TSO, 2005), at para 64 and see p 45, para 9. The Constitutional Affairs Committee accepted evidence that contact might not take place with

non-resident parents’ parents if the resident parent does not encourage it (at para 62). It went on to note the representation made by Families Need Fathers to the effect that grandparents should have a right to apply for contact without having to seek the leave of the courts and made its recommendation accordingly, observing that leave is not required in adoption cases under s 26 of the Adoption and Children Act 2002 (at para 63).

27 The Conservatives have said they will remove the leave requirement if elected (A. Frean, ‘Grandparents’ access rights’, Times Online – Newspaper edition, 7 January 2005).

28 See Westminster Hall Debates, Grandparents (Access to Grandchildren), 18 Jan 2006, Hansard, HC Deb, cols 265–266WH, 18 January 2006.

29 In support of her stance, she cited the paramountcy principle: Ibid, at col 267WH 30 Ibid, at col 269WH 31 The benign image of the grandparent seems to have currency among some academics. See, for a

discussion of the some of the literature, F. Kaganas and C. Piper, ‘Grandparents and the Limits of the Law’ (1990) 4 Int J of Law and the Family 27, at pp 32–35. It also has some currency among decision-makers. Writing of the position in Canada and North America, Goldberg contends that judges deploy ‘generalized presumptions’ about the benefits of contact. Politicians in turn, he says, may find it difficult not to ‘translate popular stereotypical images of grandparent roles into legislation that further empowers their elderly constituents’ (D. Goldberg, Grandparent-Grandchild Access: A Legal Analysis (Department of Justice, Canada, 2003), at pp 13 and 16). This is a background paper on grandparent contact which was prepared for the Department of Justice, Canada. It is telling that the comments quoted above appear under the heading ‘Cultural and judicial mythology’.

32 Baroness S. Greengross ‘Introduction’ in L. Chesterman, G. Farrow and R. Nugee (eds), Relative Values … The Best Interests of the Child) (Grandparents’ Association, undated).


‘The Government recognise and value the important role that grandparents play in their grandchildren’s lives. Whether families are together, divorced or otherwise, grandparents play an essential part in the upbringing of any child lucky enough to have them. No one disputes that. [M]ost children see their grandparents as important figures in their lives and enjoy the time that they spend with them … I want to make it clear that there is no dispute about the grandparents’ importance in the lives of their grandchildren.’33

That it is considered right and reasonable for parents, especially separated parents, to foster contact with grandparents is apparent from the parenting plan published by the Government and designed to guide separating parents to reach the ‘best possible arrangements’ for the future of their children; there is a clear expectation that parents should consider making arrangements to facilitate contact. Putting your Children First34 advises parents that it is normally in children’s best interests if parents support contact with the wider family and close family friends.35 Grandparents are mentioned specifically as family members who might be important to children,36 and it is suggested that children have a ‘right to a relationship’ with both parents’ families.37 The norm promoting contact between grandparents and grandchildren is perhaps even more explicitly articulated in Scotland. GASH argued that a presumption of contact would deter litigation38 and contended for the creation of a legal rule. But although it is true that they failed to achieve this objective, they did succeed in strengthening a non-legal norm promoting contact. The Official Report of the Scottish Parliament,39 for example, states that:

‘There can be no doubt that the involvement of grandparents is very positive in the lives of children, particularly the lives of children who become vulnerable after a relationship breaks down.’40

The Executive’s view of grandparents was equally favourable and it said that the role of grandparents should be highlighted. Although it thought that the problem of grandparent contact disputes could not be resolved by enacting legislation,41 it endorsed the idea of a parenting agreement and a Charter, originally called the Grandparents’ Charter, but subsequently renamed the Charter for Grandchildren.42

33 Westminster Hall Debates, Grandparents (Access to Grandchildren), 18 Jan 2006, Hansard, HC Deb,

cols 265–266WH, 18 January 2006, at col 267WH. 34 Department for Education and Skills, Parenting Plan. Putting Your Children First. A Guide for

Separating Parents (DfES, 2006). 35 Ibid, at p 4. 36 Ibid, at p 8. 37 Ibid, at p 9. 38 GASH, ‘Today’s Solutions for Today’s Problems. Supporting Family Unity’ (undated), at p4. 39 Official Report of the Scottish Parliament, 15 September 2005, at cols 19132 and 19143. 40 Ibid, at col 19143. Grandparents were also said to contribute to the protection of their grandchildren

(col 19158). 41 Scottish Executive Justice Department, Family Law (Scotland) Bill, Response to Justice 1 Committee

Stage 1 Report (Scottish Executive, 2005), at p 13. 42 Scottish Executive, Family Matters. Charter for Grandchildren (2006). The change in name was

intended to reflect the need to consider children first: The Scottish Parliament, The Official Report of 15 September 2005 on the Family Law (Scotland) Bill, col 19144.


The Parenting Agreement, according to the Executive, recognises the role that the ‘wider family, such as grandparents’ can play in promoting security and stability, particularly in times of conflict.43 The guide included in the pack sent to parents with the agreement singles out grandparents for consideration when deciding on contact.44 Parents are told that they will want to minimise the disruption to children occasioned by parental separation by ensuring that they keep in touch with those who are important to them, such as grandparents.45 The plan itself prompts parents to consider ‘Which family members and friends who are important to your children will they stay in contact with?’.46 Then the document suggests that grandparents might be recorded as persons having a close involvement in children’s lives. It seems clear that the agreement is meant to convey a message and that message, insofar as it relates to grandparents and grandchildren, is that contact should be facilitated and encouraged. The Family Law Stakeholder Group in Scotland47 spelled out in more detail the messages it thought should be conveyed. It observed that the aim was to change attitudes and said:

‘Here are some messages which could be got across: • Grandparents can give children love and companionship. • They can keep them in touch with other family members and give them a

sense of their own history. • They may not be so busy as a single parent, so they can be more relaxed. • They may be able to help out with baby-sitting, homework, etc. • Research shows that it is easier for children to bear the pain of their parents

separating if they do not have the extra loss of losing contact with their grandparents.’48

The Charter for Grandchildren in turn is designed to:

‘remind everyone involved in children’s lives, whether on a personal or professional basis, of the important role grandparents and the wider family can play in a child’s life, and how the wider family can be a source of support and stability in difficult times.’49

The Charter is set out in a booklet for young people.50 It is also included in the pack sent to parents and it is sent to professionals. The idea behind it is that ‘parents,

43 Scottish Executive Justice Department, Family Law (Scotland) Bill, Response to Justice 1 Committee

Stage 1 Report (Scottish Executive, 2005), at p 13. 44 Scottish Executive, Family Matters Parenting Agreement For Scotland – Guide (2006), at p 8. 45 Ibid, at p 9. 46 Scottish Executive, Family Matters: Parenting Agreement For Scotland – Plan (2006). 47 See Scottish Executive, Family Law Stakeholder Group Meeting 3 Paper 3 (2005)

(http://www.scotland.gov.uk/Topics/Justice/Civil/17867/FLSG03062005paper3). The stakeholder group, which debated how to improve grandparents’ status in a non-legal way, included Family Mediation Scotland, Couple Counselling Scotland and GASH.

48 The source of this assertion is not identified. 49 Scottish Executive, Family Matters. Family Law in Scotland Affects Everyone. What does it Mean for

You? (2006). See also the covering letter from A. Finlayson (2006) which is sent with the pack. 50 This booklet, produced to inform young people about family law, tells them that the ‘extra support’ they

might need in difficult times often comes ‘from other people in the family – grandparents, aunts and


professionals, children and grandparents are all reminded at all stages of the need to nurture and support these important relationships’.51 The Charter52 itself asserts that, while parents are primarily responsible for raising their children, grandparents and the wider family can play a ‘vital supporting role’. Grandparents, it goes on, can help maintain stability in children’s lives in times of family difficulties, whether arising from divorce, separation or death. Parents are urged to look beyond their own feelings and to help children to stay in touch. The document is limited in its ambitions but it is undoubtedly also intended to send a clear message. It provides, among other things, that:

‘Families are important to children – grandchildren can expect … • To know and maintain contact with their family (except in very exceptional

circumstances) and other people who are important to them. • To know that their grandparents still love them, even if they are not able to

see them at the present time. • To know their family history….. • Social workers, when making assessments about their lives, to take into

account the loving and supporting role grandparents can play in their lives. • The courts, when making decisions about their lives, to take into account the

loving and supporting role grandparents can play in their lives.’ In the official publications, then, grandparents are presented as being important to children. Parents and professionals alike are urged to consider the benefits of contact. This is new. Although the idea of the grandparent as a repository of family history and a source of comfort and affection has a long pedigree, this is the first time that grandparent/grandchild contact has been actively promoted by Government in this way. It is also a ringing endorsement by policymakers of the significance of grandparents in safeguarding children’s best interests. Through adopting these new measures, the state is seeking, albeit through non-legislative means, to ‘radiate’53 messages about how to reorder family relationships, especially after separation or divorce. The state is seeking to promote a particular construction of welfare and to encourage ‘responsible’ decision-making by families that incorporates this understanding of welfare. The emergence of the norm in favour of grandparent contact has, therefore, significant implications for the informal, if not necessarily the legal, resolution of disputes between grandparents and resident parents. It has the potential to influence the way in which mediators and conciliators carry out their functions. This matters. The absence of legal regulation does not mean de-regularisation; mediation is simply a different form of ‘social discipline’.54 It is a powerful means of ‘purveying particular

uncles for example’ (Scottish Executive, Family Matters: Family Law and Young People in Scotland (2006), at p 7 (http://www.scotland.gov.uk/Publications/2006/04/27135509/1)).

51 Scottish Executive, ibid. 52 The draft Charter provided very detailed advice for grandparents and parents designed to ensure that

cooperative relationships supporting contact were established. See Family Law Stakeholder Group, Meeting 4, Paper 2 (http://www.scotland.gov.uk/Topics/Justice/Civil/17867/FLSG19072005paper2).

53 This term is borrowed from J. Dewar, ‘Family Law and its Discontents’ (2000) Int J of Law, Policy and the Family 59, at p 69.

54 A. Bottomley, ‘Resolving Family Disputes: A Critical View’, in M. Freeman (ed), State, Law and Family: Critical Perspectives (Tavistock and Sweet and Maxwell, 1984), at p 300.


norms and underwriting particular images of the family’.55 The norm of grandparent contact is also set to influence the way in which lawyers advise clients and conduct negotiations. As Neale and Smart’s56 research shows in the context of disputes between parents, many lawyers see their role as being impartial, conciliatory and as promoting the resolution they regard as being in the best interests of the child as they understand it. This can place considerable pressure on the party considered to be uncooperative and unreasonable. That grandparent contact is assumed, by and large, to be in children’s best interests may place resident parents who oppose it into those categories. Yet whatever forms the basis of the conventional wisdom that grandparents are important for children’s wellbeing, it is not empirical evidence. Goldberg, for instance, remarks that existing research provides ‘little or no basis in fact’57 for the stereotypes that populate the pronouncements of politicians and other policy-makers. Indeed, the research reveals a more complex picture than the blurred rosy images conjured up by ‘homely, family things’.

RESEARCH Some research findings do support the view that grandparents can make a vital contribution to their grandchildren’s welfare.58 For example, Thompson’s empirical work in the UK led him to conclude that ‘in the phase of family crisis following the loss of a parent through divorce or death’, grandparents ‘provide crucial help at all kinds of levels’.59 They act as ‘practical everyday carers, as emotional anchors, firm but gentle child-rearers, as models for achievement, as listeners and as transmitters of crucial information’. However, there were some examples in his study of lack of attachment60 and Thompson noted that the grandparent-grandchild relationship cannot be assumed to be close: ‘it has to be constructed through taking a positive and loving interest in a child’.61 More recent research by Ross et al62 also documents the existence of close relationships between grandparents and grandchildren. Grandchildren who reported having close relationships with their grandparents said that the older generation mediated between children and parents when there were disagreements. These grandchildren also considered their grandparents to be confidants; they were seen as listening and ‘being there’. They were ‘constructed as conveyors of family history, heritage and traditions, storytellers who kept grandchildren aware of their own family

55 A. Diduck and F. Kaganas, Family Law, Gender and the State (Hart Publishing, 2006), at p 431. 56 B. Neale and C. Smart, ‘“Good” and “Bad” Lawyers? Struggling in the Shadow of the New Law’ (2004)

19 Journal of Social Welfare and Family Law 377. 57 D. Goldberg, Grandparent-Grandchild Access: A Legal Analysis (Department of Justice, Canada,

2003), at p 16. 58 See further, for a brief overview of research, I. Dey and F. Wasoff, ‘Mixed Messages: Parental

Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225, at p 237.

59 P. Thompson ‘The role of grandparents when parents part or die: some reflections on the mythical decline of the extended family’ (1999) 19 Ageing and Society 471, at p 499.

60 Ibid, at p 484. 61 Ibid, at p 483. 62 N. Ross, M. Hill, H. Sweeting and S. Cunningham-Burley, Grandparents and Teen Grandchildren:

Exploring Intergenerational Relationships (Edinburgh: Centre for Research on Families and Relationships, 2005).


experiences and culture. They were a bridge to the past and a link to the extended family’.63 However, relationships did vary. Many children favoured maternal grandparents over paternal, apparently because they tended to have more contact with maternal relatives through their mothers.64 Also, contact with grandparents, whether maternal or paternal, declined as children grew older.65 Other studies are even more equivocal in their findings. Research by Lussier et al66 suggests that the nature and value of children’s contact and relationships with grandparents are contingent on various factors. While the researchers found that most grandchildren felt close to their grandparents, lower levels of closeness were apparent when it came to the non-resident parent’s parents. In general, they found that ‘closeness with grandparents was associated with better adjustment in children’.67 But frequency of contact did not determine degrees of closeness. Moreover, the effects of closeness varied and in some instances were detrimental. The authors observed that ‘it is not possible for us to draw simple conclusions about the protective effects of close grandparent-grandchild relationships for children’.68 Research by Ferguson et al69 provides even less support for generalisations. It reveals different degrees of grandparent involvement. The researchers reported that maternal grandparents usually played a more active role than paternal grandparents and that this pattern could be discerned both before and after parents separated. What is more, they said, maternal grandparents’ involvement could sometimes be a result of necessity rather than because relationships were close. For example, grandparents could be used as a childcare resource where none other was readily available. Neither grandchildren nor grandparents were necessarily happy with the arrangement. The authors’ findings also indicate that children did not confide in grandparents and they went on to challenge the frequently made claims that grandparents are a source of emotional support after parents split up.70 Different styles of grandparenting also affected relationships: some grandchildren had reservations about visiting and a number reported being bored when doing so.71 In addition, although many relationships could still be described as close, there was a gradual reduction in contact as children grew older.72

63 Ibid, at p 5. Grandparents who participated in a US study considered their role to include ‘having fun’

with grandchildren, teaching them values, listening to grandchildren’s problems, recounting family history and giving grandchildren treats (AARP, The Grandparent Study 2002 Report (AARP, 2002), at p 8).

64 N. Ross, M. Hill, H. Sweeting and S. Cunningham-Burley, Grandparents and Teen Grandchildren: Exploring Intergenerational Relationships (Edinburgh: Centre for Research on Families and Relationships, 2005), at p 6.

65 See also AARP, The Grandparent Study 2002 Report (AARP, 2002), at p 59. Grandchildren’s busy schedule was a significant factor in limiting contact.

66 G. Lussier, K. Deater-Deckard, J. Dunn and L. Davies, ‘Support across two generations: children’s closeness to grandparents following parental divorce and remarriage’ (2002) 16 Journal of Family Psychology 363.

67 Ibid, at p 373. 68 Ibid, at p 373. 69 N. Ferguson with G. Douglas, N. Lowe, M. Murch and M. Robinson, Grandparenting in Divorced

Families (The Policy Press, 2004). 70 See ibid, at pp 29–31. 71 Ibid, at pp 19, 36, 40–41. 72 Ibid, at p 21. See also p 24.


Ferguson et al surmised that the relationship between grandchildren and grandparents is an asymmetrical one, with grandparents placing more importance on it than grandchildren, and their interviews with grandchildren lend support to this view.73 While grandparents sometimes suffered grief if separated permanently from grandchildren, it appears that grandchildren did not. The authors concluded that it ‘cannot be assumed that the grandparent-grandchild relationship is a valuable resource for children without taking account of the nature and quality of the particular relationships in the individual family’.74 In addition, the finding of asymmetry, they argued, suggests that grandparents should not be given a right to have contact against the wishes of the parents.75

GRANDPARENTS’ GROUPS: CAMPAIGN STRATEGIES All the main grandparent groups have indeed been asking for changes to the law. However, not all have the same goals. The national groups based in England have focused on procedural law whereas lobbying in Scotland has been directed at the substantive law. The Grandparents’ Association, which offers support nationally,76 declares in its mission statement its goal of improving the lives of children by ‘working with and for all grandparents’, ‘especially those who have lost or are losing contact with their grandchildren because of divorce, family feud or other problems’ and they seek to promote change in policy and legislation.77 This group emphasises that the use of the courts should be a last resort and suggests that its members try different ways, including mediation, of persuading resident parents to accede to contact. Rather than focusing on rights, they advise grandparents to emphasise the loss suffered by the child, as well as the benefits offered by a relationship with grandparents.78 However, they do not exclude the possibility of using the courts and, along with the Family Rights Group79 and Grandparents Plus, they have called, in a joint ‘manifesto’, for a review of the requirement to apply for leave.80 The campaigns about contact run by grandparent groups such as these have been reasonably restrained, but the relatively new body, GASH, set up in Scotland in 2001, has been somewhat more radical in its demands and in its tactics. What they have been asking for is that a presumption in favour of contact with grandchildren be embodied in legislation:

73 See ibid, at p 24. 74 Ibid, at p 130. 75 Ibid, at p 32. 76 No grandparent groups are specific to Wales and assistance, particularly for Welsh grandparents,

tends to be remote via helplines and websites (Beth Johnson Foundation, Grandparents in Wales: A Baseline Document (undated), at p 12).

77 http://www.grandparents-association.org.uk/about.asp. 78 Grandparents’ Association ‘Arguments to be used by Grandparents Seeking Contact with a

Grandchild. Fact Sheet 9’ (http://www.grandparents-association.org.uk/factsheets/factsheet9.pdf). 79 See also FRG, Supporting Family and Friends Carers. An Agenda for Action (undated). This group is

also calling for the abolition of the leave requirement (ibid, at para 11) although only, in this document, for grandparents who have been acting as carers for 12 months.

80 Celebrating Grandparents and the Extended Family – A Call to Action (Grandparents Association, ‘Stop Press!’ 21 March 2005).


‘Change the law to give PRESUMPTION OF CONTACT then the resident parent will know ahead of any challenges that they cannot simply wipe out a family from the child’s life.

This will encourage those involved to attend conciliation/crisis counselling, which will assist in finding middle ground and compromise. This has to be MANDATORY to avoid the manipulative parent being uncooperative. At present, often very little effort is put into this by the controlling parent, meaning little chance of compromise.’81

While the combative language used by GASH, as well as the nature of its demands, distinguish it from the other organisations, there are nevertheless certain strategies that are common to all the grandparent campaigning groups. Their first objective is to establish the lack of grandparent contact as a major social problem. To substantiate their claims, they set out to show that the scale of the problem makes it worthy of attention. The Grandparents’ Association, for example, states that ‘an estimated 1 million grandchildren are denied contact with their grandparents as a result of adoption, divorce, separation or family feud’.82 Then the main strategy is to focus on the value to children and families of grandparent contributions to child care, on the benefits to children of maintaining links with grandparents and the wider family, and on the harm suffered by grandchildren deprived of grandparent contact. The extended family is said to be ‘a fundamental building block for good outcomes for children and families’.83 Undeterred by the lack of strong evidence to support their contentions, groups lobbying for better contact rights for grandparents invoke a selective and simplified account of the available research. They rely on purveying a particular version of children’s welfare as well as a particular version of the ‘good’ post-separation family.84 In this family, despite the separation of the parents, children’s wellbeing comes first

81 GASH, Today’s Solutions for Today’s Problems. Supporting Family Unity (undated), at p 4 (emphasis

in original). They have argued that there should be ‘Mandatory Mediation and Family Education Centres’ (GASH 17 July 2004 ‘Reluctant Judges in Family Law’).

82 Grandparents’ Association, ‘Stop Press!’ 18 November 2005 and 21 March 2005. As Dey and Wasoff observe (I. Dey and F. Wasoff, ‘Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225, at pp 237–238), there is little evidence for this. In a report of a seminar held in 2003 and published by the Grandparents’ Association and Children Law UK (R. Nugee (ed), Relative Values … Missing out on Contact (Grandparents’ Association, 2003), at p 7) it is apparent that the evidence is anecdotal:

‘The Grandparents’ Association Advice Line receives approximately 350 calls a month. The majority are from grandparents who for various reasons have either had contact with their grandchildren stopped or are about to have their contact links severed … Anecdotally the prime cause of grandparents losing contact with their grandchildren is either because of a family feud with the parents or because of divorce and separation.’

In a survey of 1500 grandparents conducted in the USA, only 9% cited divorce or separation as a ‘major’ reason for not spending as much time as they wanted with their grandchildren, while 14% said it was a ‘minor’ reason and 77% said it was not a reason at all (AARP, The Grandparent Study 2002 Report (AARP, 2002), at p 59).

83 Grandparents Talking, Report of a seminar facilitated by Grandparents Plus in 2003, at p 2 (http://www.grandparentsplus.org.uk/news/grandparents_conf_04.pdf).

84 The campaigns, like the research cited in them, appear to focus more on the situation where the parents of the child have separated or divorced. Less attention seems to be paid to the problem of family feuds between the parents on one side and the grandparents on the other. Certainly the official response is largely confined to cases of relationship breakdown. The focus of this article, therefore, is on such cases of separation and divorce.


and, in order to promote this, continuity is considered essential. Children’s relationships with those important to them must be maintained, and maintained in a harmonious setting. In this context, grandparents are portrayed as almost invariably important for children’s well-being. Rather than make reference to child welfare knowledge in all its complexity, campaigning groups reinforce their message by repeated assertions. For example, the ‘manifesto’ issued by the Grandparents’ Association, Grandparents Plus and the Family Rights Group affirms their belief that ‘all children benefit from being part of an extended family’,85 whose members ‘may all contribute to the rich tapestry of family life’, providing a sense of culture and heritage. They call for increased awareness on the part of parliamentary candidates of the ‘vital role’ that grandparents and the wider family play, especially in the ‘emotional and cultural lives of children, and also for improved training to increase the awareness of social workers, lawyers and other professionals. Considerable emphasis is placed by grandparent groups on the special nature of the relationship86 and grandparents are described as a valuable emotional and practical resource, a source of affection and entertainment, and an important store of knowledge about origins and roots.87 But not only are grandparents ‘good’ for grandchildren, grandparent absence is ‘bad’. There is talk on grandparent websites of the damage that ensues if contact is not maintained. It is said that children who are estranged from their grandparents as a result of divorce ‘suffer’.88 What is more, society as a whole is affected. The Seniors Network,89 which bills itself as an information resource for older people, asserts that the ‘family unit as we knew it is becoming defunct’ because ‘grandparents are not recognized as relevant people in their grandchildren’s lives’. This has meant a loss of heritage, stability and guidance. The website continues in a somewhat sentimental vein but the threat of harm is clear:

‘Grandparents can give children a spiritual magic – a magic that is lost without them, reading stories, listening to their worries, their secrets, and taking part in their games (looking for fairies, frogs etc) … Children lose out on childhood innocence and a loving comfort which they seek all their lives, and most never

85 Celebrating Grandparents and the Extended Family – A Call to Action (2005)

(http://www.grandparentsplus.org.uk/ news/manifesto_08_03_05.doc). See also Grandparents Association ‘Stop Press!’ 18 November 2005; 21 March 2005. See also Grandparents and the Extended Family (Understanding Childhood, 2006), a leaflet produced by child psychotherapists for families and for child and family practitioners. This states that the grandparent-grandchild relationship is ‘invaluable for everybody’ and that ‘if parents split up, it is almost always in the children’s best interests to maintain reasonable contact’.

86 See http://www.grandparents-association.org.uk/. 87 Grandparents’ Association ‘Arguments to be used by Grandparents Seeking Contact with a

Grandchild. Fact Sheet 9’ (http://www.grandparents-association.org.uk/factsheets/factsheet9.pdf). Elsewhere, grandparents are said to be able to provide support for children and the newly single parent when the family breaks up. Their role is ‘vital’ in providing continuity; conveying a sense of family history; helping out in emergencies; providing a ‘conflict free zone’ (Grandparents Talking, Report of a seminar facilitated by Grandparents Plus in 2003 (http://www.grandparentsplus.org.uk/ news/grandparents_conf_04.pdf), at p 5.

88 J. Curtis, ‘Grandparents Feel the Hurt of Divorce, too’ (http://www.family2000.org.uk/ grandparents%20hurt.htm). This website is referred to in Newsletter (January/February 2006) published by Grandparents Plus (http://www.grandparentsplus.org.uk). A piece on a US website describes loss of contact as a tragedy: J. Wilson, ‘A Grandchild’s Rights to Visitation by Grandparents’ (http://www.cyberparent.com/gran/visitationrights1.htm).

89 http://www.seniorsnetwork.co.uk/grandparents/.


find because of the lack of family life. The world is paying a heavy penalty by excluding grandparents.’

Most groups, then, invoke notions of continuity, altruism and stability. Some also make reference to human rights.90 What becomes apparent, however, in the predictions of harm to children and of social disintegration, is the influence of the discourse of fathers’ rights groups.

INFLUENCE OF FATHERS’ CAMPAIGNS To some extent, the fathers’ rights campaign and the grandparents’ campaign overlap; there are common goals and similar strategies. On occasion they join forces and can be seen to argue each others’ case. Most notably, there are fathers’ rights groups that claim to represent grandparents and these claims have enabled such groups to speak for grandparents in policy and professional circles. CAFCASS, for example, has stated that it recognises that groups like Fathers4Justice (F4J), Families Need Fathers (FNF), the Association of Shared Parenting and Fathers Direct, which have all had an impact on public opinion and in the political arena, represent other relatives as well as fathers.91 In fact, grandparents’ rights are not a major concern for these groups. F4J,92 for example, includes grandparents in its lobbying and describes itself as ‘the world’s leading equal parenting group campaigning for a child’s right to see both parents and grandparents’.93 But it concentrates mainly on the parent (father)/child relationship.94 The FNF Articles of Association lists as one of its objects ‘the relief of parents and their children and other close family members suffering from the consequences of divorce and separation’.95 However it seems that grandparents are not among the organisation’s priorities. Grandparents’ interests are rarely central to its representations but they do feature in the written evidence submitted by FNF to the select Committee on Constitutional Affairs.96 There,the group asserts, without elaboration, that there should be ‘recognition of the wider family’ and it expresses support for the abolition of the leave requirement.97 One organisation that frequently mentions grandparents in its material is the Equal Parenting Council, which claims to speak for the ‘growing legions’ of family members

90 See, for example, Grandparents’ Association ‘Arguments to be used by Grandparents Seeking Contact

with a Grandchild. Fact Sheet 9’ (http://www.grandparents-association.org.uk/factsheets/ factsheet9.pdf). 91 A. Douglas, Open letter to Groups Representing the Interests of Fathers in Private law (2005, see

http://www.cafcass.gov.uk/english/Media/press/Open_letter_14Jun05.pdf). 92 Disbanded in January 2006 but now with a new website which describes the organisation as a ‘wider

… movement’ (‘In the Name of the Father’, http://www.fathers-4-justice.org/). 93 M. O’Connor with G. Burch and M. Cox, A Blueprint for Family Law in the 21st Century. The Case for

Urgent, Radical Reform (2nd edn, 2005), at p 3 (http://www.fathers-4-justice.org/f4j_blueprint_2005.pdf). The document also states that ‘ALL decent parents and grandparents have inalienable rights to share in the care and upbringing of their children and grandchildren, and the breaking of the bond between child and parent is a grotesque travesty of natural justice’ (at p 4).

94 The same applies to the splinter group, Real Fathers for Justice. 95 http://www.fnf.org.uk/aboutus/objects.htm. 96 FNF, ‘Evidence Submitted by Families Need Fathers’ (2004) (http://www.publications.parliament.uk/pa/

cm200405/cmselect/cmconst/116/116we23.). 97 House of Commons Constitutional Affairs Committee, Family Justice: The operation of the family

Courts. Fourth Report of Session 2004-5. Vol 1 (TSO, 2005).


who have been ‘badly let down by the seriously flawed UK family justice system’.98 They represent, they say, parents, primarily separated fathers and mothers, but ‘also grandparents’, ‘whose role in their children’s lives has been terminated or limited by the family courts, simply because the de facto custodial parent wants rid of them’.99 In addition, they claim to speak for children who, they say, are ‘suffering’ because they ‘are losing one of their parents (and extended family, such as one set of their grandparents) for no good reason’.100 This group maintains that one of the reasons that it is important for fathers to have contact is to ensure that children keep in touch with grandparents; the presence of grandparents as well as parents, they say, is needed to prevent harm to children.101 What is more, a failure to support contact can be damaging to society as a whole: ‘[children’s] adult relationships suffer and their own children’s lives are negatively impacted … Dysfunction breeds dysfunction breed [sic] dysfunction’.102 The primary aim, therefore, of these organisations is to win rights for fathers and their concern for grandparents and the wider family is largely with paternal relatives whose contact with children is affected by the restriction or termination of fathers’ contact. Generally speaking, these groups are not actively pursuing the independent interests of grandparents; the contact they envisage for grandparents is dependent on children’s contact with fathers. Children’s supposed need for a relationship with grandparents is mainly invoked to support calls for reform to strengthen the position of non-resident fathers. If fathers do not have contact, then nor do paternal grandparents. The solution for grandparents and their grandchildren therefore depends on a solution for fathers. It is reform of the law to incorporate a presumption of ‘shared parenting’ between resident and non-resident parents, the main demand of all the fathers’ rights groups, that will assist grandparents and children as well as parents, they say.103 Presumably the reasoning is that shared parenting will stop so-called ‘bitter custodial parents’104 from ousting non-resident parents, and so also the grandparents, from children’s lives. Central to the aim of promoting shared parenting is the strategy of vilifying those resident mothers who oppose it105 and demanding their punishment by means of the application of ‘clear laws’.106 Grandparent groups, in contrast, have set out to identify grandparent contact as a distinct social problem and not as something necessarily linked with paternal interests. But some do seem to have adopted, to a greater or lesser degree, the arguments that feature in fathers’ rights campaigns.

98 Equal Parenting Council (EPG), ‘Reform Proposals 2004. Version 200904’, at p 1

(http://www.equalparenting.org/Download/EPC%20REFORM%20PROPOSALS%20v200904.pdf). 99 EPC, ‘Submission of Equal Parenting Council (EPC) in the Inquiry into Family Justice: The Family

Courts’ (2004), at para 1 (http://www.equalparenting.org/Download/Submissions/RE-AMENDED%20 SUBMISSION%20-PARL%20INQUIRY%20-%20FAMILY%20COURTS%203% 2012%2004.pdf.

100 Ibid, at para 43. 101 See EPC, A Chance for Reform – Government’s Consultation on the ‘Convention on Contact’

(undated), at p 5. 102 EPC, ‘Submission of Equal Parenting Council (EPC) in the Inquiry into Family Justice: The Family

Courts’ (2004), at para 43. 103 T. Coe, ‘Shared Parenting – The Right Starting Point’ (undated), at p 7. 104 T. Coe ‘Green Paper on Child Access Law Reform – same old, same old’ (20 July 2004). 105 See F. Kaganas, ‘Domestic Violence, Men’s Groups and the Equivalence Argument’ in A. Diduck and

K. O’Donovan (eds), Feminist Perspectives on Family Law (Routledge Cavendish, 2006). 106 EPC, ‘Submission of Equal Parenting Council (EPC) in the Inquiry into Family Justice: The Family

Courts’ (2004), at p 8.


For one thing, there is the emergence of the image of the manipulative and vengeful woman. In a report of a seminar hosted by the Grandparents’ Association and Children Law UK, for example, it was pointed out that parents might use the contact issue as an emotional weapon against the grandparent.107 More particularly, it was said, mothers manipulate the welfare principle. It is the mother who (without genuine or defensible reasons) places impediments in the way of the child’s relationship with other relatives. She must be brought under control because it is she who stands in the way of what are perceived as the child’s ‘real’ best interests. The welfare test:

‘is easily manipulated by the mother, so the mother, in fact, takes priority in defining what is in the best interests of the child … Others’ rights have been seen as something which is potentially hostile to the child. The consequences of this are that any relationships through fathers, particularly those of the child’s grandparents, are becoming tenuous and difficult to sustain. Therefore it has been suggested that research should be concerned with the ways of limiting the rights of the mother by emphasising the rights of the other relatives. Once there is this matrix of wider rights it will be easier to protect the real interest of the grandchild.’108

This is not an official statement of the Grandparents’ Association’s position, and such hostility to mothers is not a prominent feature of the material disseminated by English-based and national organisations. However, in Scotland, the tone of Grandparents Apart is considerably more emotive and more strident, and the group’s approach clearly owes much to the tactics of fathers’ rights groups. 109 Indeed, it has even made representations to the Scottish Executive presenting the grievances of non-resident fathers in terms that reverberate with those used by fathers’ groups.110 In addition, it has signed up to the Reform Proposals111 published by an organisation called the Coalition for Equal Parenting (CEP). These proposals, which are endorsed by all members, of which GASH is one,112 follow the fathers’ rights agenda. They demonstrate a commitment to a presumption of equally shared parenting time or shared residence,113 mandatory education and mediation,114 and severe sanctions for mothers who are recalcitrant or who make false accusations against non-resident parents.115 The document accuses the judiciary and CAFCASS of bias. It also 107 R. Nugee (ed), Relative Values … Missing out on Contact (Grandparents’ Association, 2003), at p 7. 108 Ibid, at p 8. 109 It is significant that these tactics are not repudiated by English groups. There are links to the GASH

website from that of the Seniors Network and from the Spring 2006 Newsletter published by Grandparents Plus on its website.

110 GASH, Response 145, Grandparents Apart Self-Help Group. 111 See www.mankind.org.uk/cep.pdf. 112 Other members include the Grandparents Action Group, FNF, the Mankind Initiative and the Equal

Parenting Council (http://www.grandparentsapart.co.uk/coalition.htm). There are other links with the fathers’ rights movement. GASH has successfully solicited the support of Bob Geldof, who has become an honorary patron. Geldof campaigns for father’s rights and he has links with FNF. The group also had the support of Robin Cook (‘Geldof’s Support for Grandparents’ http://news.bbc.co.uk/1/ hi/scotland/3528854.stm).

113 CEP, Reform Proposals. Version 23090 (www.mankind.org.uk/cep.pdf), at p 10. See also EPC, ‘Submission of Equal Parenting Council (EPC) in the Inquiry into Family Justice: The Family Courts’ (2004).

114 CEP, ibid, at p 16. See also EPC, ibid. 115 CEP, ibid, at pp 17–18. See also EPC, ibid.


designates children’s refusal to see the non-resident parent as ‘alienation’ engendered by the resident parent who ‘poisons’ her children’s minds and who thereby engages in an insidious form of child abuse. 116 In its material dealing specifically with grandparent contact, GASH, like fathers’ rights groups and other grandparent groups, seeks to establish that both children and adults are harmed by the cessation of contact. It proclaims itself to be a ‘self help group dedicated to ease the suffering of grandparents and grandchildren and extended families torn apart’.117 The images of the anguished grandparent and the damaged child pervade its material and personal accounts of heartbreak are intended to bring the message home. One grandmother’s exclusion from her grandchildren’s lives is described, for example, as being ‘worse than a death to her’.118 The language of bereavement echoes that of F4J119 and other fathers’ groups,120 as does the linkage, apparent in the following, between the loss of contact and the risk of delinquency:

‘The emotional and mental welfare of children is not being properly taken into account because there is no physical bruising, but the long term damage has yet to materialise often showing unconsciously as, unruly behaviour, lying, selfishness, and disrespect for their elders, children learn what they live.’121

In the same way that fathers’ groups designate the refusal of mothers to allow contact as malevolent and irrational, so GASH characterises parents (and more specifically mothers) as ‘spiteful’122 and all-powerful.123 Children who refuse to see their grandparents are described as having been ‘brainwashed’ and the concept of alienation is enthusiastically embraced.124 Professionals125 implicated in the decision to sever the relationship are described in terms that suggest incompetence and their 116 CEP, ibid, at p 8. See also EPC, ibid . 117 GASH, http://www.grandparentsapart.co.uk/. 118 GASH, http://www.grandparentsapart.co.uk/casehistory/index.htm#The%20Tiff. 119 This was apparent on the old F4J website. See now, M. O’Connor with G. Burch and M. Cox, A Blueprint

for Family Law in the 21st Century. The Case for Urgent, Radical Reform (2nd edn, 2005), at p 4. 120 ‘[C]hildren are losing one fit parent for no good reason. Parents are missing out on their children’s most

precious childhood years. Grandparents are losing out. For many it is worse than losing a child to death for there can be no closure’ (T. Coe, ‘Submission of Equal Parenting Council (EPC) and the Coalition for Equal Parenting (CEP) in the Inquiry into CAFCASS’ (2003), at para 39 (http://www.equalparenting.org/select_committee.htm). See also CEP, Reform Proposals. Version 23090 (www.mankind.org.uk/cep.pdf), at pp 4 and 5; EPC, ‘Submission of Equal Parenting Council (EPC) in the Inquiry into Family Justice: The Family Courts’ (2004).

121 Similarly: ‘Lies breed lies and if it’s OK for Mum and Dad to tell lies then children will assume it is OK for them to do it too and this will follow into adulthood and so the cycle goes on’ (GASH, Today’s Solutions for Today’s Problems. Supporting Family Unity, see http://www.grandparentsapart.co.uk/ familylaw/booklet1.pdf).

122 GASH, ‘Victoria Rights to See’ (2006). 123 A petition calling on the Scottish Parliament to implement Article 8 of the ‘European Human Rights Act’

[sic] demands the involvement of families in ‘any decision-making process affecting children’s access to grandparents, fathers or extended families. To abolishing the one person dictatorship which exists today, and also directing the courts to enforce legal contact already obtained by due process of law’ (http://www.grandparentsapart.co.uk/).

124 GASH, http://www.grandparentsapart.co.uk/casehistory/index.htm#The%20Tiff; GASH, Today’s Solutions for Today’s Problems. Supporting Family Unity, see http://www.grandparentsapart.co.uk/ familylaw/booklet1.pdf.

125 The Law Society has received a letter accusing solicitors of giving poor advice and Social Services have been accused of issuing ‘falsified reports’.


procedures are described in terms that suggest injustice.126 The law is criticised as being unfair127 and, where contact is refused, is said, along with resident parents,128 to be implicated in child abuse. All this calls to mind the campaigning of men’s groups which insist that there is unfairness and bias in family law and which seek to recast the refusal of contact as child abuse.129 Perhaps the most telling illustration of the impact of fathers’ groups’ methods of campaigning is the following press release issued in 2004:130

‘Wanted Batman and Robin Job Description To climb cranes and public buildings in support of grandparents getting contact with their grandchildren. Hours As long as you can stay up. Remuneration Heavenly rewards.’

ROLE OF PRESSURE GROUPS There is no evidence what effect, if any, grandparent campaigns have had on public perceptions. Recent research conducted in Scotland suggests that the public does see grandparents as special,131 but that opinion about the need for legal change is divided.132 Some of those consulted thought that grandparents need legislation. Others argued that the legal process is damaging to families, that rights might open the child to abuse and that the demands on children’s time would be too great. Some raised the possibility that other relatives as well as grandparents would claim rights and some raised the prospect of rights being awarded without responsibilities. Some thought that parents should be the ones to decide and that they would normally have good reasons for blocking contact. In addition, the law was not seen as an appropriate or effective

126 GASH, http://www.grandparentsapart.co.uk/casehistory/index.htm#The%20Tiff. 127 ‘Grandparents Speak out for Vulnerable Children. A Book Exposing the Injustice of Family Law’

(http://www.grandparentsapart.co.uk/). 128 GASH, Today’s Solutions for Today’s Problems. Supporting Family Unity, see

http://www.grandparentsapart.co.uk/familylaw/booklet1.pdf). 129 See F. Kaganas, ‘Domestic Violence, Men’s Groups and the Equivalence Argument’ in A. Diduck and

K. O’Donovan (eds), Feminist Perspectives on Family Law (Routledge Cavendish, 2006). 130 F4J members have donned the outfits of superheroes such as Batmen in carrying out their protests. 131 F. Wasoff and C. Martin, ‘Scottish Social Attitudes Survey 2004 Family Module Report’ (Scottish

Executive Social Research, 2005). 132 Scottish Executive, ‘Family Matters: Improving Family Law in Scotland. Report from Scottish Civic

Forum consultation events held in Glasgow, 10th June 2004; Perth, 14th June 2004; Dumfries, 22nd June 2004’ (Scottish Executive, 2004, http://www.scottishexecutive.gov.uk/Publications/ 2004/10/20059/44683); L. Nicholson, Improving Family Law in Scotland: Analysis of Written Consultation Responses (The Scottish Executive, 2004), at para 7.1; mruk Research Ltd, Family Law Consultation Interactive Focus Groups Exercise (Scottish Executive, 2004). See, for discussion, I. Dey and F. Wasoff, ‘Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225.


means of resolving such disputes, with mediation, counselling and increased public awareness being the preferred options.133 Overall, the reluctance to back rights for grandparents appears to be rooted largely in scepticism about the efficacy of legal entitlements in the context of family disputes and concerns about exacerbating family tensions. Yet there does appear to be a widely held belief that contact with grandparents is a ‘good’ thing. The views of those participating in the consultation often reflected the benign images of grandparents appearing in popular culture and in the campaigns of grandparent groups.134 Some, for example, referred to the ‘great value of grandparents in providing a loving and steady influence on their grandchildren particularly in times of tension within the child’s immediate family’. Even those who opposed law reform ‘acknowledged what they perceived to be the key role which grandparents could play in their grandchild’s lives and supported a continued relationship wherever this was in the best interests of the child’.135 The reservations expressed by members of the public are echoed in the response of the lawmakers.136 But, although government reaction has not been quite what grandparent groups wanted, a positive response has nonetheless been forthcoming. Why these groups have managed to elicit this response might be explicable not simply on the basis of the strength or persuasiveness of their claims but, more significantly, by reason of the congruence between some of their objectives as pressure groups and the current policy agenda. Smith defines pressure groups as ‘organisations which seek to represent the interests of particular sections of society in order to influence public policy’.137 He stresses that all they can hope to do is to influence state policy, not determine it. And whether or not they succeed in influencing policy depends to a large extent on the receptiveness of the state, or state actors, to their claims. ‘Insider groups’ are regarded as legitimate and are consulted by the Government on a regular basis.138 Groups that do not conform to dominant beliefs within the policy sector concerned are ‘ignored or excluded’.139 However, to ignore groups can entail costs, he says.140

133 See L. Nicholson, Improving Family Law in Scotland: Analysis of Written Consultation Responses (The

Scottish Executive, 2004), at paras 7.1–7.2. See also mruk Research Ltd, Family Law Consultation Interactive Focus Groups Exercise (Scottish Executive, 2004), at para 5.49.

134 It may be that there is some significance accorded to the biological relationship itself. In a report of a seminar held in 2003, a psychiatrist is recorded as saying that the ‘grandparent can be a grumpy old bugger, smoking a pipe in the corner. He kicks the dog and snarls at the grandchildren now and again. He is that child’s grandparent and that is what matters. He is the only grandparent that the child has got. He has to be good enough’ (R. Nugee (ed), Relative Values … Missing out on Contact (Grandparents’ Association, 2003), at p 6).

135 L. Nicholson, Improving Family Law in Scotland: Analysis of Written Consultation Responses (The Scottish Executive, 2004), at para 7.1.

136 Ibid. The Scottish Executive was not satisfied that a right of contact was appropriate. Difficulties they considered included the view that rights are given in order to fulfil responsibilities; that tensions could be exacerbated if parents were opposed to contact; that the child’s spare time would be restricted by the need to maintain contact; that a right for grandparents would ignore children’s views; and that there was no reason to distinguish between grandparents and other family members or close friends (L. Nicholson, Improving Family Law in Scotland: Analysis of Written Consultation Responses. The Scottish Executive; Parents and Children. The Scottish Executive’s Proposals for Improving Family Law (2004)).

137 M. Smith, Pressure, Power and Policy (Harvester Wheatsheaf, 1993), at p 2. 138 Ibid, at pp 2–3. 139 Ibid, at p 4. 140 Ibid, at p 56.


One might speculate, perhaps, that the extent of the cost incurred depends at least in part on the extent of popular support the cause concerned attracts. The costs of ignoring the father’s rights lobby, for example, would appear to be relatively high; they include poor publicity for the family law system and the risk of a loss of public confidence in it. The costs of ignoring grandparent groups are potentially lower; grandparents are not seen by the public as being absolutely pivotal to children’s welfare in the same way that fathers are. In addition, there is probably a widespread perception that it is parents who should in the first instance make decisions about their children’s upbringing; there appears to be a norm of non-interference141 to which even grandparents themselves subscribe. Therefore the exclusion of grandparents does not provoke the same perceptions of injustice that fathers’ exclusion does. Yet it is undeniably the case that a number of grandparents’ groups, notably the Grandparents’ Association, Grandparents Plus, FRG and GASH, have had a voice in government and policy circles. The speech of the Parliamentary Under-Secretary of State for Education and Skills in the Westminster debate attests to the high profile that grandparent groups have achieved and to policymakers’ concern to be seen to take their views into account: 142

‘The Hon Gentleman suggested that the voices of grandparents are not heard … However, the Government do listen to the voices of grandparents and their organised groups – he referred to the Family Rights Group and the Grandparents Association. I have had the benefit of meeting many such groups and I always examine their contributions to the reports that are prepared by various forums in the House.’

The Government has evidently decided, therefore, to keep grandparent groups, like fathers’ groups, on board; both lobbies are treated as insider groups. Commonly held understandings about children’s welfare may be one explanation for this. But there may be others. For example, one reason for treating fathers’ groups, by and large,143 as insider groups may be that their priorities, centred on keeping fathers involved in the family, sit well with the concern of the state to encourage responsible parenting. 141 G. Douglas and N. Ferguson, ‘The role of Grandparents in Divorced Families’ (2003) Int J of Law,

Policy and the Family 41, at p 55; I. Dey and F. Wasoff, ‘Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225, at pp 241–242.

142 The Conservative MP, Stewart Jackson, also appears to have been listening to grandparent groups. He referred explicitly to the Grandparents’ Association, FRG and Grandparents Plus in his address (Westminster Hall Debates, Grandparents (Access to Grandchildren), 18 Jan 2006, Hansard, HC Deb, col 363WH, 18 Jan 2006). In addition, the statistics he cites are those used by the Grandparents’ Association. The speech also shows signs of the influence of grandparent groups in its references to the ‘vital role’ played by grandparents, the grief they suffer when excluded and the possible breach of human rights this entails (see Cols 263–266WH).

143 Smith asserts that radical groups tend to be excluded because, by taking high profile action, they are breaking the rules of the policy-making game (M. Smith, Pressure, Power and Policy (Harvester Wheatsheaf, 1993), at p 61). Fathers4Justice could arguably be placed within this category. Yet their very public protests have made them so visible that it appears that policymakers have deemed it more prudent to consult them and, perhaps ‘tame’ them so that they become more willing to confine their demands to private discussion. Barton speculates that the tactics used by Fathers4Justice may have been more effective than the ‘insider’ strategies deployed by Families Need Fathers (C. Barton, ‘Pressure Groups and Family Law – What Will the Men Want Next?’ [2006] Fam Law 202, at p 212). Arguably, the same might be said of GASH, whose more aggressive campaign may have led in large part to the Charter for Grandchildren in Scotland. This could be counted a (limited) success in comparison with the achievements of the other UK groups such as the Grandparent’s Association.


Similarly, it may not just be welfare considerations that give the main grandparents’ groups their insider status.144 This might also conceivably be ascribed, at least to a degree, to the perception among policymakers that grandparents have an important role as supplementary or substitute carers, a role that helps save public money145 and helps to keep family difficulties in the private sphere. In addition, grandparents are seen as a civilising influence, helping to teach children how to become responsible citizens. Grandparent involvement is compatible with policies that favour the privatisation of the family and the promotion of family responsibility. It may also be the case that the Government is concerned to attract the ‘grey’ as well as other votes. While legal rights for grandparents might not have a great deal of popular support, the idea of grandparent-grandchild relationships as an intrinsic ‘good’ does. As the consultation process in Scotland shows, grandparents are seen as having a positive contribution to make to the welfare of their grandchildren generally. To ignore grandparents who say they are trying to ensure continuity and preserve loving relationships would risk popular and media criticism. Of course, as Smith points out, insider status does not enable pressure groups to determine policy. Neither fathers’ nor grandparents’ groups have got what they want: new rights. Presumably this is because that campaign aim does not fit comfortably with the objectives of the state. The state wishes to reduce conflict and litigation. Rights are seen by policymakers as potentially conflict-producing and as having the potential to lead to litigation.146 Nevertheless, those charged with making family policy accept that contact should be promoted and that lack of contact is a problem that has to be addressed. Grandparent groups, therefore, have had an impact, albeit limited. GASH, for example, has suggested that the changes in Scotland are attributable to its intervention. Under the heading ‘Pat on the back for grandparents [sic] groups’,147 it has announced that both the parenting agreement and the Charter ‘contain a lot of [its] proposals’. And the group has also claimed to have raised the profile of grandparents and to have changed perceptions of them from ‘irrelevant persons’ to ‘assets’. There is surely some truth in these claims, but there is perhaps another factor that has contributed to the success of grandparent groups: they have benefited, some directly and some indirectly, from the efforts of fathers’ rights groups. A few grandparent groups, like GASH, have deemed it expedient to ally themselves directly with fathers’ rights groups. However, arguably all grandparent groups, even those that

144 For example, representatives from Grandparents Plus, FRG and the Grandparent’s Association were

permitted to meet with the Parliamentary Under-Secretary of State for Children in order to discuss their Grandparents’ Manifesto (see Grandparents plus Newsletter, Autumn 2005; Grandparents plus Newsletter, January/February 2006).

Alliances with fathers’ rights groups, such as in the EPC, also confer insider status. The Family Law Stakeholder Group in Scotland also creates such an alliance. It includes both FNF and GASH. See, for eg A Finlayson (2006) Parenting Agreement for Scotland: Covering Letter http://www.scotland.gov.uk/ Publications/2006/04/25113259/1.

145 But see R (L and Others) v Manchester City Council; R (R and Another v Manchester City Council) [2001] EWHC Admin 707, [2002] 1 FLR 43 which held that a local authority policy of paying short-term foster carers who were friends or relatives of the child at a much lower rate than that paid to other foster carers was unlawful.

146 Dey and Wasoff suggest that specific legal status for grandparents was never seriously in prospect in Scotland given the potential such a change would have for generating conflict and litigation (I. Dey and F. Wasoff, ‘Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225, at p 244.

147 GASH home page (http://www.grandparentsapart.co.uk/).


have adopted a low-key, conciliatory approach, have been able to promote their cause more effectively as a result of the changes in the landscape wrought by fathers’ rights groups. Because fathers’ groups have demanded grandparent contact, albeit as part of their strategy to promote paternal contact, they have contributed to the construction of grandparent absence as a problem. However, perhaps more importantly, grandparents have themselves been able to build on the foundations laid by fathers’ rights groups in their campaigns. These men’s groups have ensured that continuity and contact are seen as crucial to children’s well-being. They have entrenched in the national consciousness, and introduced into policy debates, the figure of the irrational or manipulative resident mother and they have politicised the issue of contact. Men’s groups’ insistent complaints have clearly borne fruit; courts have been stung by their attacks and have reacted. In V v V (Contact: Implacable Hostility)148 Bracewell J severely criticised those mothers who resist paternal contact and called for more effective measures to enforce orders:

‘[4] There is … a perception that courts allow parents with care to flout court orders for contact and permit parents with residence to exclude the parent from the lives of the children so that the other parent is worn down by years of futile litigation which achieves nothing and only ends when that parent gives up the struggle, or the children are old enough to make their own decisions, assuming they have not been brainwashed in the meantime … [6] … Unreasonable parents, by definition, are difficult to deal with, and the most intractable situation is undoubtedly the unreasonable mother.’

Munby J in Re D (Intractable Contact Dispute: Publicity)149 referred to media coverage, presumably of fathers’ rights campaigns, and said:

‘There is much wrong with our system and the time has come for us to recognise that fact … If we do not we risk forfeiting public confidence. The newspapers … make uncomfortable reading for us. They suggest that confidence is already ebbing away. We ignore the media at our peril.’

Both children’s best interests and the maintenance of public confidence in the legal system are now seen as reliant on measures to prevent mothers from ‘getting away with it’. The sequel to this has been the enactment of sections 11A–P of the Children Act 1989, and the introduction into the law of new enforcement mechanisms designed to ensure that resident mothers comply with contact orders. Within the media and within the popular imagination, and among politicians as well as among legal and child welfare professionals, there is now an aura of credibility about the kinds of myths and grievances purveyed by fathers’ groups about family ties and unreasonable resident mothers. Those mothers who are seen as obstructing contact, it is thought, must be brought under control and stripped of their power. They must be persuaded by mediators and professionals, or forced by the courts, to do what is best for their children and accede to contact. The suspicion of resident mothers and readiness to question their motives and their judgment has become widespread. That their decisions are considered likely to be coloured by bad faith or irrationality renders it legitimate to disregard their wishes and to discount their opposition to contact. 148 [2004] EWHC 1215 (Fam), [2004] 2 FLR 851. 149 [2004] EWHC 727 (Fam), [2004] 1 FLR 1226, at para [4].


While it is not the aim of most grandparent organisations to vilify resident mothers, it is clearly their goal to enable grandparents to succeed in gaining contact despite parental and, more particularly, maternal resistance. Parents, in practice normally mothers, who deny their children continuity and support in the form of contact are said by even the most moderate grandparent groups to be acting contrary to their children’s best interests. Implicit within this assertion is that such mothers are ‘bad’ mothers. So while they advocate persuasion rather than coercion, and while they tend to refrain from actively demonising resident mothers as a category, it cannot but assist the cause of grandparent lobbyists that resident mothers are regarded with distrust. Professionals such as lawyers and mediators will be far more willing to seek to ‘persuade’ women whose opposition is seen as unreasonable, malicious or simply wrong-headed. Moreover, mothers themselves who are apprised of the pro-contact norm are more likely to internalise the belief that to be ‘good’ mothers, they should comply.150 For grandparents, arguments focusing on welfare and caring, combined with now widely held beliefs about the fallibility of mothers, have proved persuasive within family policy. Contact is likely to be contested in the shadow, if not of the law,151 then of a new norm favouring grandparent contact.

CONCLUSION It might be thought that the concessions made to grandparent groups are relatively minor ones. It appears still to be the case that in official discourse, there exists a hierarchy of relationships with children, with parents outranking grandparents. But the Scottish Charter152 and the presence of grandparents in parenting plans153 throughout Britain are significant. The norm of grandparent participation and involvement in their grandchildren’s lives has been established and it is potentially far-reaching in its application. There is now an expectation that grandparents will at least be considered in parents’ planning after separation or divorce. While in practice negotiations, mediation and other forms of informal dispute resolution involving parents alone may not prioritise grandparent contact at present – often through lack of time – it is almost certain that where they are directly in dispute with resident mothers, the position of grandparents will be strengthened as a result of this normative expectation. It is probable that, in such disputes, child welfare professionals, lawyers and mediators will become more ready to promote contact. The explanation for the higher profile of grandparents cannot lie in any compelling empirical evidence of the importance and benefits to children in general of grandparent contact; the evidence is not conclusive. It must therefore lie in the pervasiveness of the myths about the relationships between grandparents and

150 But parents do find ways of positioning themselves within the welfare discourse while still resisting

contact. See S. Day Scater and F. Kaganas, ‘ Contact Mothers: Welfare and Rights’ in A. Bainham et al (eds), Children and their Families: Contact, Rights and Welfare (Hart Publishing, 2003); F. Kaganas and S. Day Sclater, ‘Contact Disputes: Narrative Constructions of “Good” Parents’ (2004) 12 Feminist Legal Studies 1.

151 This phrase is borrowed from R. Moonkin, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ 1979 CLP 65.

152 Although the Charter has been described as being merely symbolic: I. Dey and F. Wasoff, ‘Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law’ (2006) 20 Int J of Law, Policy and the Family 225, at p 245.

153 Although there is room to doubt how much use will be made of parenting plans in relation to grandparents. See L. Trinder, J. Kellett, J. Connolly and C. Notley, Evaluation of the Family Resolutions Pilot Project (DfES, 2006), at p 93.


grandchildren that have been fostered by, or at least reinforced by, the campaigns of lobbying groups. They have sought to render axiomatic the advantages to most children of contact and have succeeded in reconstructing children’s welfare, in official discourse, to include ties with grandparents. Conversely, the welfare principle is being re-interpreted to designate as harmful any resistance to contact by resident mothers. The effect of this is to open the way, along a path already cleared by fathers’ rights groups, for the condemnation of parents, usually resident mothers, who oppose contact. Grandparent campaigns have, arguably, gained force as a result of the prevalence of suspicion of mothers and, perhaps, will even help to reinforce it. The consequence of all this will be to increase pressure154 on caretaking mothers to agree to contact, not only in cases involving fathers, but those involving grandparents too. This in turn increases the pressure on the leisure time of the children concerned who might, , especially when older, prefer to spend their time on hobbies, after-school activities and friends. Moreover, there is no guarantee that the pro-contact climate will not, in time, enter the court-room. We may yet see the day when resident mothers could be faced with the prospect of being instructed to attend counselling and guidance, and, in extreme cases, be subject to enforcement orders as a result of grandparental claims for contact.

154 The norm of participation could have consequences for grandparents that some may find difficult. It

could lead to moral pressure on them to conform to an emerging norm of ‘good’ grandparents. They could find that they are expected to contribute to the care of their grandchildren and to do so in a way that is considered positive (see N. Ferguson with G. Douglas, N. Lowe, M. Murch and M. Robinson, Grandparenting in Divorced Families (The Policy Press, 2004), at pp 133–137, 142). Ferguson et al talk of moves in the USA to improve the quality of grandparenting (at p 133), including the possibility of implementing training programmes aimed at teaching grandparents ‘permissiveness, tolerance, flexible attitudes, respect for individuality and the value of lifelong education’ (at p 136).

grandparents’ rights and grandparents’ campaigns

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