Grandparents can be heavily relied upon by parents to assist in caring for their grandchildren, often while parents are juggling home life with busy careers. As a result, grandparents become essential figures in children's lives and close bonds are developed early on.
Unfortunately, grandparents can often experience difficulties in terms of exercising regular contact or access with their grandchildren when problems arise between parents. This becomes ever more difficult following upon a separation or divorce. Sometimes, grandparents' contact can also suffer due to conflict or a breakdown in their own relationships with the children's parent(s).
In an ideal world, grandparents would be able to be involved in seeing their grandchildren regularly irrespective of any disputes that may occur between the parents; however situations can arise where one set of grandparents can be isolated. This is unfortunate, as it is well recognised that grandparents can play hugely beneficial role in their grandchildren's care and upbringing.
Unfortunately for grandparents in Scotland, there are no automatic rights which entitle them to enjoy contact time with their grandchildren. The reason for this is that only the parents of children usually acquire parental rights and responsibilities.
What are parental rights and responsibilities in Scotland?
Parental rights and responsibilities are owed from a parent or a person upon whom parental rights and responsibilities have been conferred by a Court .
A parent has, in relation to their child, the legal responsibility to:
- safeguard and promote the child’s health, development and welfare.
- provide, in a manner appropriate to the stage of development of the child direction & guidance.
- If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis.
- act as the child’s legal representative but only in so far as compliance with this section is practicable and in the interests of the child.
A parent, in order to enable them to fulfil their parental responsibilities in relation to their child, has the legal right to:
- have the child living with them or otherwise to regulate the child’s residence.
- control, direct or guide in a manner appropriate to the stage of development of the child, the child’s upbringing.
- If the child is not living with them, to maintain personal relations and direct contact with the child on a regular basis.
- act as the child’s legal representative.
Parental Rights are applicable to children under the age of 16.
Who has parental rights and responsibilities for a child in Scotland?
When a child is born in Scotland, a birth mother automatically acquires Parental Rights and Responsibilities. If the child's father is married to the child's mother at the time of birth, the father will automatically acquire parental rights and responsibilities.
If the child was born after 4 May 2006 and the child's father was registered on the child's birth certificate following birth, the father would acquire parental rights and responsibilities.
If a child's father is unmarried and is not named on the child's birth certificate he would not acquire parental rights and responsibilities in relation to the child, irrespective of whether he is the biological father of the child.
For children born prior to 4 May 2016, even where an unmarried father was registered as the child's father on the birth certificate they would not automatically acquire parental rights and responsibilities.
Grandparents therefore do not have automatic rights to see their grandchildren as they do not fall within the category of persons who have automatic parental rights and responsibilities.
What can grandparents do who are unable to see their grandchildren in Scotland?
- They can approach the parents of the children and try to re-establish contact directly.
- They could invite the parents to consider family mediation with a view to contact being re-established once communication between the parents and grandparents has been improved.
- They can instruct a solicitor to provide them with legal advice and write to the parents with proposals for contact and consider Collaboration.
- In the event that the above methods prove unsuccessful, it is possible for grandparents to apply to a Court for an order allowing them to have regular contact with their grandchildren. To be able to seek contact via the courts, the grandparents must simply be able to demonstrate they claim an interest in the child.
How does the Court decide whether Grandparents should have access or contact?
In considering whether to make an order allowing Grandparents to secure an order for contact with their grandchildren, the court will take into consideration the following:
- They will regard the child's welfare as the paramount consideration.
- The child will be given an opportunity to express his or her views and the court will have regard to those views. This applies insofar as is practicable in light of the child's age and maturity. Children aged 12 or over are presumed to have sufficient legal capacity to provide a view.
- The court will not make any order unless it considers that it is better to do so, rather than make no order at all.
- The courts will consider the need to protect a child from any risk of abuse.
What happens if, as a grandparent, I want to care for my grandchildren full time?
In some circumstances parents may not be able to care for their children for a variety of reasons. In such situations it is possible for grandparents to fall into a role of being a primary carer for their grandchildren. They do not however hold Parental Rights and Responsibilities unless an order conferring Parental Rights or Responsibilities has been granted by a court, or a Residence Order has been granted in their favour. If a Residence Order is granted in favour of grandparents, they will acquire parental rights and responsibilities equivalent to those held by a child's parents. This allows them to be involved in all major decisions relating to their care and upbringing.
What is Kinship Care?
A Kinship care arrangement is the term given to the situation whereby a child is unable to be looked after by their parents and the local authority or social work services have decided to place the child with a person who is related to the child through blood, marriage or with whom the child had a pre-existing relationship. When an individual is appointed as a Kinship carer they are entitled to an allowance to care for the child from the local authority to assist in meeting the child's needs. Kinship Care has the same effect as a Residence Order.
In many cases children can be caught in the middle of complicated family dynamics, whereby their views are often overlooked. Generally children have very close relationships with their grandparents and it is important that that relationship is maintained irrespective of any disputes that may arise between the children's parents.
Get in touch
If you require further advice on the rights of grandparents, contact a member of our family law team for a free initial telephone call.