Access to minors refers to the right of the parent with whom the child is not residing, to spend time with the child, as well as the right of the child to spend time with aren’t with whom the child doe not reside. Up until recently, the term access was exclusively associated with parents, whether biological or otherwise. However, the term is, in terms of a recent judgment, evolving into a wider spectrum of persons involved in the child’s life and this beyond the parents of the child.
Grandparents are at times involved in the minor’s life and form profound bonds with the child. The role of grandparents in certain cases is very important and the latter can be considered as an important and integral part of the child’s life. It has therefore long been debated whether grandparents who wish to be involved in the child’s life do have the legal right to request access to their grandchild.
The Courts both locally and overseas normally base all decisions in accordance with the principle of ‘the best interests of the child’. Whereas parents have an intrinsic duty and legal obligation to be involved in the child’s life and spend time with the child simply because they are ‘parents’, the right of grandparents to make such request has been debated with various arguments both in favour and against such stance. Although as in all cases, grandparents may wish to be involved in the child’s life for ulterior motives particularly when deprived of access following a break-up in the relationship of the parents or possibly a rift between the grandparents and their own children, there are certainly a majority of grandparents who would be willing to pursue their right to see and spend time with their grandchildren solely on the basis of their genuine interest in the latter.
Up until recently, rights were exclusively limited to parents. Furthermore, parents felt that they were the sole persons who had the right to decide whether their offspring should or should not make contact with third parties including grandparents and parents always felt that they were responsible or the persons they chose to involve in the child’s life. Hence, the belief that parents had the right to exclude grandparents from their child’s life of the parents so wished, for whatever reason.
This position has been challenged by recourse to our courts recently and the courts did reach an interesting conclusion. In the particular case, the court primarily decided that grandparents did have the right to file proceedings to request access to their grandchildren and hence had a juridical interest. In the particular case, the grandparents resided overseas whereas the minor of four years resided in Malta with their daughter who had barred them contact with the child. The relationship between plaintiffs (the grandparents) and the parents of the child had deteriorated and as consequence, the parents of the child decided to prohibit all contact between the child and the grandparents. In essence the decision of the parents to deprive their child from contact with the grandparents was a result of a personal feud between the parents of the child and the grandparents. The court interestingly observed that although the law does not explicitly provide for the rights of access to grandparents, the law does impose the obligation on ascendants to provide for the child in the default of the parents as well as for the obligation of descendants in respect to their ascendants. The Court further explained that the right to request access does not grant the grandparents an automatic right to access to grandchildren. However the Court did recognize the right of grandparents to request such access – the ultimate decision shall remain within the discretion of the courts after due evaluation of the best interests of the child, which is to be determined on a case by case basis, including the reasons as to why parents are refusing such access.
The judgment has therefore clarified the situation for many grandparents who repeatedly felt they had no voice and no right whatsoever to try to spend time or communicate with beloved grandchildren and were therefore forced to succumb to the decision of the parents – which in certain cases may have not only deprived the grandparents of being positively and constructively involved in the child’s life but even more, it would have deprived the children of well-meaning and positive influences, relationships and experiences in their life, contrary to the child’s own best interests.