Grandparental Contact – What are My Rights?

In the modern landscape, given that one or more parents are often in employment, grandparents can play a pivotal role in the family dynamic. They are often looked to for assistance with childcare and support, and can have a close and loving bond with their grandchildren. Unfortunately for a litany of reasons, contact between grandparents and their grandchildren can break down, for example when the parents of children separate, or there is acrimony between one parent and the grandparents. In any event, it can be unduly distressing for grandparents and their grandchildren when contact is ceased, and the question arises, what rights do grandparents have to contact in such a situation?

In short, although grandparents do not have an automatic right to have contact with their grandchildren, anyone deemed to have an ‘interest’ in the life of a child is able to take steps to pursue contact with that child, and grandparents ostensibly fall within that category. Only individuals who have parental rights and responsibilities in respect of a child have such an automatic right, who are usually the children’s parents, however, that does not preclude grandparents from seeking contact with their grandchildren, should their contact cease.

In the first instance, grandparents should try and open a line of communication between the parents of the child to attempt to agree on a contact arrangement. If this fails, grandparents may wish to instruct a solicitor and obtain their advice. A solicitor can write out to the parents of the child and ask that contact is re-instated, emphasising why contact would be in the “best interests” of the child. The parents of the child may instruct their own solicitor and parties agents are able to correspond to attempt to negotiate and agree the terms of a formal contact arrangement.

If correspondence is unsuccessful in yielding a positive result, and grandparents have exhausted all other avenues, then they can apply to the court under s11 of the Children Scotland Act 1995 for an order for contact. An application is made to the court by drafting and lodging an ‘initial writ’ seeking a contact order.

When considering the application, the court must consider:

1. The welfare of the child concerned will be the court’s paramount consideration and the court shall not make such an order unless it considers it would be better for the child that the order be made than that none should be made at all;
2. The child shall be given an opportunity to express their views and the court shall have regard to those views. This principle applies as far as is practicable and the child’s age and maturity should be taken into account; and
3. The need to protect the child from actual or possible abuse.

The court will assign a Child Welfare Hearing where the sheriff will consider submissions and pleadings from both parties if available. If the sheriff does not feel that they have enough information at that stage to come to a decision, then they may order a child welfare report or social work report to investigate to what extent contact is in the best interests of the child. The child’s parents, grandparents, other family and professionals are often interviewed, including the child most importantly, if they are of the age where they can give a view.

If in all the circumstances, the court decides that a contact order should be made, the order will set how contact should operate and this will be a legally binding order. It involves a duty of cooperation on the part of the parent with care to encourage contact and facilitate this in a positive way.  If there is then non-cooperation and a failure to comply with a contact order, there are further legal remedies available to enforce it.

If you require assistance in respect of a grandparental contact matter, please do not hesitate to contact one of our dedicated Family Team on 0141 429 8166.