Background
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This month the Scottish Parliament Information Centre (known as SPICe) re-published its Briefing Paper on “Contact between grandparents and their grandchildren”. Generally speaking, its subject matter is a non-issue. Grandparents, parents and grandchildren are all happy to see one another and if there are any issues these are usually resolved privately amongst those directly concerned.
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Nevertheless, on occasion, there can be difficulties: a common example is where parents separate or divorce acrimoniously and the children continue to live wholly or mainly with one of the parents. In these circumstances the grandparents on the other side of the family may find maintaining contact challenging.
The law
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The law says that grandparents do not have an automatic right of contact with their grandchildren.
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In general, it is the child’s parents and only the child’s parents who have what are referred to as “parental rights and responsibilities” in relation to the child and one such right relates to who has contact with a child on a day-to-day basis.
So, what happens if disagreements about contact can’t be resolved amicably?
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It is of course best to try to settle any dispute about a child amicably with a child’s parents. It can be helpful in some circumstances to use a mediator or a solicitor to support this process.
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But if a dispute about contact cannot be settled amicably, section 11 of the Children (Scotland) Act 1995 enables a grandparent (or anyone else with an interest) to apply to the sheriff court for a “contact order” in their favour.
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If a contact order is granted by the court, the order will set out the legally binding arrangements under which contact should happen.
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Under the 1995 Act, courts reaching decisions in any dispute about “parental rights and responsibilities” will have regard to several key principles. The welfare of the child is the most important and overriding principle.
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Another key principle is that a child is given an opportunity by the court to express their views. The court must also consider (although not necessarily follow) any views the child expresses.
The Children (Scotland) Act 2020
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Various aspects of the Children (Scotland) Act 1995 were reviewed and certain changes introduced in the 2020 Act. These changes however did not go as far as some would have wished as the following extract from the Stage 1 Report on the Bill (subsequently the 2020 Act) indicates Stage 1 Report on the Children (Scotland) Bill | Scottish Parliament:
“Contact with grandparents
249. Grandparents in Scotland (as in the rest of the UK) have no automatic right to see their grandchildren. At present, a grandparent is entitled (as someone with “an interest”) to apply for a contact order, with the courts treating the welfare of the child as the paramount consideration.
250. The Scottish Government consulted on a possible presumption in favour of contact between children and their grandparents. No such presumption appears in the Bill. Instead, the Scottish Government has said it will continue to promote the Charter for Grandchildren.
251. The Charter for Grandchildren was introduced in 2006. The Charter highlights the role of the wider family and sets out that grandchildren can expect, amongst other things, to know and maintain contact with their wider family except in very exceptional circumstances.
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253. However, in its written submission, [the organisation known as] Grandparents Apart [Grandparents Apart UK Grandparents Apart UK « “Bringing Families Together”] suggested that the Charter has not been effective at improving contact between grandchildren and grandparents. Grandparents Apart therefore argued that the Bill should include a right for grandchildren to have contact with their grandparents.”
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But that suggestion was not adopted and the position remains that grandparents do not have any automatic right of contact with grandchildren.
The Children (Scotland) Act 2020 more generally
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The Children (Scotland) Act 2020 does make various changes to the 1995 Act. But these provisions are not yet in force. In any event, the 2020 Act does not depart from the fundamental principles on which courts currently reach their decisions. It does however set out a range of changes which aim to improve how the system operates.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Fiona Wayman: email Fiona@mitchells-roberton.co.uk