Grandparents Maintaining Contact After Divorce

The role of grandparents in modern society has increased, not least in part due to the often prohibitive costs of childcare. Traditionally, grandparents may have played more of a part in raising families when they may have all lived together under one roof. However, in recent years this has not been the case.

Grandparents have no automatic rights to contact with their grandchildren. To understand the legal status of grandparents seeking contact with their grandchildren, it is necessary to understand the broader legal framework of Parental Rights and Responsibilities (PRRs) stated by the Children (Scotland) Act 1995.

PRRs include the right to have a child live with the person having PRRs. Furthermore, where the child does not live with that person, there is both the right and the responsibility to have contact with that child. There is also a responsibility to safeguard and promote a child’s health, development and welfare. Furthermore, there is a PRR to direct or guide the child’s upbringing in an age-appropriate way. Consequently, a wide range of day-to-day decisions about a child’s life fall within the scope of PRRs, such as those to do with his or her education, religious upbringing, or medical treatment.

A range of people have automatic PRRs in respect of a child. These include:

1. The child’s mother
2. The child’s father – where he was married to the child’s mother at the time of the child’s conception or subsequently, and
3. The child’s father – where he is registered as the father of the child on the child’s Birth Certificate, on or after 04 May 2006

However, under Section 11 of the 1995 Act, any person who does not have (and has never had) PRRs in respect of a child, but who “claims an interest” can apply for a court Order granting them contact with that child. Accordingly, if an amicable agreement cannot be reached about contact, a grandparent can make such an application to the court. In considering whether to grant any Order under Section 11 of the 1995 Act, the court will have regard to three principles, namely:

1. The welfare of the child is of paramount consideration
2. The child shall be given an opportunity to express his or her views, and the court shall “have regard” to those views. This will also take into account the child’s age and maturity
3. The court will not make any Order unless it considers that to do so would be better for the child than making no Order at all.

In relation to 2 above, a child aged twelve years or older is presumed to be of sufficient age and maturity enough to form a view.

According to NFM (National Family Mediation) grandparents made two thousand five hundred and seventeen court applications in 2014, in an attempt to be able to spend time with their grandchildren following the divorce of the children’s parents. This amounts to around seven applications by grandparents every day of the year. NFM has also highlighted that Family Mediation may be a better option for grandparents, rather than automatically going to court. Sometimes mediation does not resolve matters. If that is the case, you may then be faced with the prospect of raising a court action for contact.

It is vital anyone faced with this heart-breaking situation gets proper, qualified advice to avoid making what can be a traumatic and difficult situation even worse.

If you need any advice on issues involving children and grandparents’ rights, or any other family law matter, including separation and divorce, please contact one of our experienced family law solicitors based in Bathgate, Edinburgh, Dalkeith, and Musselburgh.