For many families across Scotland, grandparents offer an invaluable source of support in terms of childcare, or otherwise see their grandchildren on a frequent and regular basis. Sadly, however, this is not the case in all families.
My colleagues and I have noticed a rise in enquiries and instructions from grandparents who have lost contact with their grandchildren for a variety of reasons. This might be due to a relocation of the children with their parent(s), or, perhaps more commonly, because of a family fall out, be that between separating parents of the child or between the grandparents and the parent or parents of the child.
There can be confusion or misinformation surrounding the rights which grandparents do or do not have in relation to contact with their grandchildren. Here, our Edinburgh Family Law solicitor Lynsey Brown has put together answers to some frequently asked questions which parents and grandparents alike should be mindful of.
Do grandparents have rights of contact in Scotland?
Grandparents do not have an automatic right to have contact with their grandchildren in Scotland. Only individuals who have parental rights and responsibilities in respect of a child have such an automatic right. The only people who have parental rights and responsibilities, without having to ask the court to grant an order conferring those upon them, are parents.
Can grandparents go to court to see grandchildren?
Grandparents can, however, raise an action at court to obtain an order for contact with their grandchild as they will usually have an ‘interest’ in the lives of that child. If there are child welfare issues at home with the parent or parents, and the grandparent(s) think that the child or children should live with them instead, an order for residence of the child or children can also be sought.
Court proceedings are a last resort, however, and grandparents should explore all other avenues to try to reinstate their contact before considering court action. Raising an action at court is likely to polarise grandparents and parents further, and could cause further damage to already fractured family dynamics.
A simple first step would be for the grandparents to try to discuss and sort matters out directly with the parent(s) if at all possible. If that approach is not possible or is attempted without success, grandparents should then consider how solicitors can help, and take legal advice from a Family law specialist.
That does not mean to say, however, that court action should always then be raised immediately upon consulting with a solicitor. Before applying to court for an order for contact, grandparents should give thought to whether mediation would assist in attempting to resolve issues between them and the parent(s) and reintroducing contact. Court action should usually only be taken where the parent(s) of the child or children refuse to allow contact and refuse to negotiate.
How do I apply for ‘grandparent rights’?
If court action is necessary, i.e. if all other avenues have been exhausted and contact has not been reintroduced, or reintroduced at a reasonable level, then an action can be raised at court for an order for contact. Court papers will then be served upon the parent(s) of the child in question, and a Child Welfare Hearing will be fixed.
Child Welfare Hearings are held in private, meaning that only the parties, their respective solicitors, the Sheriff, and the Sheriff Clerk are present. It is common for a series of Child Welfare Hearings to take place in contact actions whilst investigations are carried out or reintroduced contact is monitored and reviewed.
The test which the Sheriff will apply in deciding whether to grant a contact order is whether contact is in the best interests of the child. The Sheriff has discretion in how to approach this question and he or she will take many factors into account when considering whether that test is satisfied. Each case is different according to its own facts. The child will also have an opportunity of expressing their views if they are old enough and of sufficient maturity, and the Sheriff will take those views into account.
Can I stop grandparents from seeing my child?
Parents have parental rights and responsibilities over their child and as such they have the right to decide who that child spends time with. If a parent or parents consider that contact with grandparents is no longer in the child’s best interests, they can decide not to allow that contact to continue.
However, before taking steps to terminate contact between their child and the child’s grandparents, parents must be mindful of the remedies available to grandparents in such a situation.
As discussed above, grandparents do have the right to raise a court action and ask the court to make a decision on what, if any, contact they should be entitled to with that child. If an action is raised, the decision is then taken away from the parents and put in the hands of a third party (the Sheriff) and ultimately a contact order could be granted if the Sheriff is persuaded that contact would be in the child’s best interests. The parents would have no option, if that happened, but to abide by the terms of the contact order whether they liked it or not.
Court action can also be expensive, and so parents would also have to be mindful of the potential costs of terminating contact.
Get in touch
At Harper Macleod, our Family law specialists understand that there are many reasons why family relationships may become strained and why grandparent/grandchild contact may have become difficult, or have ceased altogether.
Our award-winning family law team is experienced in acting for both grandparents and parents in these situations, and is on hand to help with the sensitive and difficult situation you may unfortunately find yourself in. For specialist, confidential advice tailored to your circumstance.
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