We're losing our grandchildren

The JC’s legal expert answers readers’ questions

By Jonathan Goldberg, July 28, 2010

Elizabeth from Leeds writes: "My husband and I are proudly Jewish but not especially observant. Our youngest son married a non-Jewish girl who converted to Judaism at that time via the Reform Synagogue, and who agreed to raise the children as Jewish. Nobody forced her into this decision, I must emphasise.

"They had two lovely boys, now aged 11 and seven. Unfortunately, they got divorced and our son now lives abroad with his new partner and has little contact with his children, who live with their mother in the UK. She has a new boyfriend, by whom she is pregnant. She now restricts our access to our grandchildren, and is making up all sorts of excuses to prevent visits. We have just heard from a reliable friend that she is sending them to church Sunday school. Clearly she is not intending that they be brought up as Jews (though both children were circumcised and they previously attended cheder at synagogue). Is there anything we can do to regain regular access or, indeed, to compel her to bring the children up as Jewish?

V Elizabeth, amid the undoubted shipwreck which divorce represents for children and their parents, too little attention is given to the trauma which can be caused to grandparents such as yourselves. This is especially surprising in light of two research statistics. The number of children in the UK cared for by their grandparents for a significant period at some point in their lives, is said to be 82 per cent. And yet 42 per cent of all grandparents lose contact with their grandchildren after divorce.

The legal doctrine which the family courts must always apply is that the welfare of the children is the paramount consideration. Yet too often this seems to translate as favouring the resident parent, who is usually the mother.

However, attitudes are slowly changing. There is now an excellent charitable organisation called the Grandparents' Association. Their website gives lots of sensible advice to grandparents in your situation. They recommend making a sympathetic and non-judgemental approach, in this case to your daughter-in-law. Perhaps this is best done initially by a letter, which will set out the history and will emphasise what an emotional loss it is to the boys themselves to lose contact with you. Alternatively, there may be a trusted intermediary who can make the same points to her, and seek to set up a meeting between you.

The court will not compel the mother to run a kosher home, for example

Although I am well known for advising that resort to the courts is a blunt instrument which must be reserved to the very last option, it is ultimately open to you as grandparents to apply to the Family Court for what is called a contact order. You are unlikely to gain public funding for your application. You should have a very good prospect of being awarded "defined contact", for example at regular weekends, and possibly even on Sabbaths or at festivals.

Compelling the mother to raise them as Jews is much more problematic. The court will not compel the mother to run a kosher home, for example, or to attend synagogue. However, my favourite family law solicitor tells me she has had cases where the children were required to attend Hebrew classes (at the grandparents' expense) and even to be barmitzvahed (at the grandparents' expense).

This would all necessitate a factual enquiry by the court, in seeking to determine where the welfare of the children is best served. There would be social services reports on both you and them. Some account would be taken of the wishes of the boys themselves. The court would need to balance the leanings of the mother towards the church with your own towards the synagogue. The fact you say you are not observant may be a factor against you. On the other hand, her inclinations towards the church may be seen to be borne of convenience and resentment against your son rather than religious conviction.

But the first thing to do is to exhaust all possibilities for a civilised compromise with her. Speak softly before employing the big stick.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC, of Ely Place Chambers, is a leading London barrister

Last updated: 3:07pm, September 3 2010