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At The McKinstry Company, we are noticing an increasing number of enquiries about the rights of grandparents, in particular concerning contact with their grandchildren. Solicitor, Colin Duck, answers our five most common questions.

This is sometimes because the grandparents are being denied contact with their grandchildren, or sometimes because the grandparents are concerned for the welfare of the grandchildren and want them to come to live with them, or at least give them some respite from a difficult home life.

Below we provide the answers to the top five questions we are asked in this area.  For more detailed information or to discuss your situation, please contact us – the sooner you do so the better.

1. What Rights Do Grandparents Have?

In Scotland, grandparents do not automatically have legal rights and responsibilities in relation to their grandchildren.  However, grandparents can apply to the Court for assistance and there are other steps they can take to get or keep involved (see below!).  The relevant legislation, The Children (Scotland) Act 1995, sets out that only the child’s mother and the child’s father (if married to the mother or named on the birth certificate) have automatic rights and responsibilities in relation to the child.

2. Can Grandparents Apply to The Court?

Yes, usually, but it will depend on the circumstances is the short answer.  Under the 1995 Act, anyone can make an application to the Court if they can “claim an interest” in the child.  Cases will each turn on their own facts, but simply being a grandparent is a step toward meeting that criterion.  If you have had a close relationship with the child and are now being denied access, or if there is a legitimate concern for the child’s wellbeing, then there are reasonable grounds to argue you have an interest in the child.  Each case is different and a quick telephone call to The McKinstry Company should be enough to answer any questions you have on this.

3. What Can the Court Do?

Providing you can satisfy the Court you have an interest in the child then you can make various applications to the Court relating to your grandchild, including applications for Contact Orders, which regulate whether, when and where you may have contact with your grandchild, and Residence Orders, which determine with whom the child resides.  If you are wondering what action to take the best course would be to telephone us and we can discuss the options that are available to you.

4. How will a Court Decide?

The most important question in any case involving children is “what is in the best interest of the child?” What the Court considers to be the best interests of the child should be the underlying basis on which any decision is made that affects a child.  The legislation describes the interests of the child as “paramount”.  The Court will only make an order if it considers it is more in the child’s interest that the order is made than if no order were to be made.

Depending on the age of the child, the Court may well take the child’s view into account.  They will consider the age and maturity of the child before deciding how much weight to give their view, but a child over the age of 12 is presumed to be mature enough to be able to express their opinion.

The Court will usually make its decisions in these matters at a Child Welfare Hearing or, more commonly, at a series of Child Welfare Hearings.  The Sheriff has the power to make interim orders; in other words, he or she can order, say, contact between a grandparent and grandchild while further investigations are ongoing.  These hearings are as informal as possible with only the parties, their solicitors and the Sheriff present and it is common for the Sheriff to ask the parties questions directly.

Often the Sheriff will ask for independent reports to be produced before a further Hearing.  These reports may be undertaken by the Social Work department, or by reporters (usually other experienced family law solicitors) who will be instructed to interview the relevant people to produce their report.  If they are interviewing the child themselves, then this will be done in an appropriate setting and in an informal way to minimise the stress on the child.

5. Other Options?

Before applying to the Court, we would always encourage clients to speak with their children and grandchildren to try to resolve whatever issues have arisen.  Sometimes a friendly letter from us can break the deadlock and get everyone talking.  Other times a sterner letter is required, but we will always tailor the approach to the circumstances of each case.  If an arrangement can be agreed or negotiated then a lot of stress is avoided for everyone – and a sensible, practical solution should be the aim, always with the best interests of the child being the top priority.

Sometimes negotiation or discussions breakdown, but where there is still some communication then mediation or a meeting between the grandparents, parents and their solicitors can be very effective.  Both approaches are designed to try to give each party a chance to be heard to work towards a solution everyone can agree on.  If an agreement is then reached the benefit is that everyone understands how it was arrived at and the compromises and concessions each party has made, which can lead to arrangements that work effectively.

Each case has unique circumstances and in any family law agreement The McKinstry Company will always try to customise the approach to your specific conditions.  If none of the above approaches are appropriate or if no agreement can be reached, then an application for assistance from the Court remains an option.  Of course, in some situations there is urgency, for example, if the child is at risk, and in those situations it may be appropriate to apply to the Court without any delay.

The one thing that is consistent in family law is that The McKinstry Company will always look at your needs and work out the approach that is best for your circumstances.  At the end of the day, we will be looking at fostering a relationship between a grandparent and their grandchild, and it is important to keep that focus.

Contact The McKinstry Company Family Law Solicitors

Our lawyers aim to relieve some of the stress you are experiencing and give you the confidence to move on with your life. We will make sure every detail is taken care of and strive for a favourable outcome for you and your family. To discuss your specific circumstances with our expert team, contact us today by calling 01292 388048 (Ayr Office), or 01465 915042 (Girvan Office).

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