What are grandparents’ visitation and access rights? : a comparative study of Maltese and European Court of Human Rights judgements

Abstract

The rights of grandparents include access and visitation rights which refers to the legal right of grandparents to maintain contact with their grandchildren. These rights reflect the evolution of grandparenthood which emphasises the critical role that grandparents play in the lives of their grandchildren. This dissertation undergoes a comparative analysis between the judgements in Malta and the European Court of Human Rights in relation to access and visitation rights of grandparents. Indirectly, these rights fall under Article 8 of the European Convention of Human Rights, which is the right for respect for private and family life. Through case law the definition of ‘family life’ within Article 8 has been extended to grandparents. There is also an analysis of the reasons why grandparents are denied such rights, as well as the downside of being granted access and visitation rights. When grandparents are denied such rights vis-à-vis their grandchildren, when possible, they may seek legal remedies to defend their rights. However, as defended through this dissertation, Malta lacks such rights resulting in a lacuna. Such rights have been the subject of significant judgments by the European Court of Human Rights, which emphasise how crucial it is to recognize them. Crucially, as reiterated by the European Court of Human Rights, the utmost importance shall always be given to the concept of the best interests of the child. Through judgements of the European Court of Human Rights, two main conditions upon which such rights are granted is whether there is the fulfilment of the notion of the best interests of the child, as well as whether grandparents are capable of taking care of their grandchildren, thus questioning whether grandparents should be subject to further screening. This dissertation will analyse the deprivation of such rights, in which upon granting access and visitation rights to grandparents, courts must create a balance between the interests of the grandparents and of grandchildren, and make sure that such rights are beneficial to grandchildren.