What right does a grandparent have to contact with their grandchild?

21/05/2018

You may have read the recent article published on the BBC news website with the headline “Call for ‘rights for grandparents’ law”. The article looked at a call by MPs to amend the Children Act, resulting in a child’s right to a “close relationship with members of their extended family”. However, the Children Act does not apply in Scotland. Therefore, what is the position in Scotland when it comes to a grandparent having contact with their grandchild?

In Scotland, issues concerning contact between a parent and child are governed by the Children (Scotland) Act 1995. A parent who does not live with their child but has parental rights and responsibilities does not have an automatic right to contact. Contact has to be in the best interests of the child. There are no specific provisions in the 1995 Act in relation to contact between a grandparent and their grandchild. If there is no presumption that contact should take place between a grandparent and their grandchild, does this mean that the door is effectively closed to contact? The short answer is no. Therefore, what can a grandparent do if they are seeking contact with their grandchild?

The starting point is usually making proposals for contact. If a grandparent feels able to communicate directly with their grandchild’s parent, then they could try making proposals directly to them. If there are difficulties with communication, then a further option would be to instruct a solicitor to make proposals on their behalf. This could mean solicitor-to-solicitor negotiation follows, with a view to reaching an agreement.

In some cases, mediation may be appropriate and this is a voluntary process. A mediator is independent and both parties would meet with the mediator on their own in the first instance to explore what the difficulties are and what they are hoping to achieve before the first mediation session takes place.

If no agreement could be reached, then a court action may be necessary. In order to raise a court action, a grandparent has to demonstrate that they have an “interest” in their grandchild’s life. An interest could, for example, be if a grandparent had contact with their grandchild previously and this stopped without a valid reason. When making a decision about contact between a grandparent and their grandchild, a sheriff considers what is in the best interests of the child.

Depending on the age of the grandchild, their views may be taken. It is usually when a child is around the age of 12 when their views are taken. However, it depends, to an extent, on the maturity of the child and whether they want their views to be taken. In a few cases, a grandchild will instruct their own solicitor.

The Scottish Government opened their consultation period for the review of Part 1 of the Children (Scotland) Act 1995 and the creation of a family justice modernisation strategy on 15 May 2018. As part of the consultation process, the Scottish Government is seeking views on whether there should be a presumption in law that children benefit from contact with their grandparents. The consultation closes on 7 August 2018.

It is clear that the issue of contact between a grandparent and a grandchild is topical at the moment. In the first instance, it will be interesting to see what the outcome of the Scottish Government’s consultation is. However, it will also be interesting to see what happens in England. It is very much a waiting game at this stage to see what the future holds for grandparents seeking contact with their grandchildren.

This article is not advice tailored to your circumstances. If you are seeking contact with your grandchild or require assistance with another family law issue, get in touch with a member of our dedicated family law team who will be pleased to assist.