Generations Apart

The sad fact is that many of those grandparents lose contact altogether, or experience a significant reduction in the time that they spend with their grandchild, following an acrimonious separation of the parents of the child.

We are all too familiar with the ‘tug of love’ cases, reported in the press, between mothers and fathers fighting for their right to exercise contact with the children of their union; however, we have not been so familiar with cases involving the right to exercise such contact by grandparents and close family members.

One reason might be that those grandparents and close family members, at present, do not have an automatic right to contact with their grandchildren.

The sad fact is that many of those grandparents lose contact altogether, or experience a significant reduction in the time that they spend with their grandchild, following an acrimonious separation of the parents of the child.

Frequently, any contact which they do get does not result from a conscious attempt to promote or maintain the child’s relations with the wider family in its own right.  Instead, it is more likely to arise on the back of time, which the non-resident parent is spending with the child, during that parent’s allotted contact.

In many cases there will be a strong argument that a child will benefit from maintaining relations with grandparents. That contact can help the child get to know their cultural heritage and provide them with a sense of who they are and what they are about.

In Scotland there is nothing, at present, to stop a grandparent applying to the court for an order that entitles them to see their grandchild on a regular basis. The Children (Scotland) Act 1995 allows any person claiming an interest to make such an application. A court dealing with such an application will make a decision, having as its paramount consideration the welfare of the child.  The court should also have regard to the views of the child, if it is appropriate to take those views. A child aged twelve or over is presumed to be of sufficient age and maturity to express a view, but the court regularly obtains the views of children younger than twelve. The weight to be attached to the child’s views depends, of course, on the child’s maturity and age.

However, there is, from time to time, a call for grandparents to be awarded an automatic right to contact with their grandchildren, in much the same way as a child’s parents acquire automatic parental rights and responsibilities.

Indeed, this very issue was debated in the House of Commons last month, with Conservative MP Nigel Huddleston saying that he had heard stories of grandparents who had tried to send birthday cards or Christmas gifts to their grandchildren, and found themselves being visited by the police and accused of harassment.

He said: ‘Divorce and family breakdown can take an emotional toll on all involved, but the family dynamic that is all too often overlooked is that between grandparents and their grandchildren’. ‘When access to grandchildren is blocked, some grandparents call it a kind of living bereavement.’

‘The right of a grandparent to see their grandchildren after a divorce should be enshrined within law’, MPs have said.

It was reported that there is cross-party support for an amendment to the Children Act, which would refer to a youngster’s right to have a relationship with close members of their extended family. This would include aunts and uncles having access to their nephews and nieces.

Whilst sentiments are undoubtedly similar in Scotland, an amendment to the Children Act would only have effect in England, the whole area of family law in Scotland being dealt with by the Scottish Courts and Scottish Government.

Ewan Campbell, Associate
Accredited Family Law Specialist

However, as it happens, this area is also currently under review in Scotland, the Scottish Government intending to review the Children (Scotland) Act 1995 ‘to ensure the interests of children and their need to form and maintain relationships with key adults in their lives – parents, step-parents, grandparents and other family members’, which they declared, were ‘at the heart of any new statutory measures’. It was reported that Scottish Ministers are ’considering a legal presumption that children stay in touch [with their grandparents] after a divorce or separation.’

All good news, it might seem for grandparents and close family members; however, it could well be that, following consultation, the Scottish Government might decide that to grant such increased rights to a greater number of parties might ultimately go against the key principle, that the welfare of the child should be paramount at all times.

The Scottish Government’s consultation period closes on 7 August and the outcome is awaited with interest.

Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken Edinburgh LLP

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