Grandparents have been in the news recently with Esther Rantzen, amongst others, highlighting the harrowing stories of grandparents whose relationship with their grandchildren has been obstructed or terminated following parental separation or family feuds.

Given many parents work and childcare costs are escalating, grandparents are often essential to family routines and assist on the childcare front. Grandparents generally relish the opportunity to do so and formative bonds are developed. It is, therefore, devastating when suddenly they find themselves cut out of their grandchild’s life.

Divorce and Separation

Divorce and separation can bring much hostility and bitterness to families. It takes compassion for parents to prioritise the needs of children over their own agenda. The parent left with care of the child may opt for a complete break from their ex’s family. According to research carried out by the charity, The Grandparents Association, a large proportion of British grandparents lose contact with their grandchildren following upon their son or daughter’s relationship breaking down.

These difficulties are perhaps linked to the fact that in Scotland we do not have a system where both parents automatically share care of their child upon separation. In Sweden, for example, if parents do not have a parental agreement, shared care is the default position. Whereas, in Scotland whilst parents may have equal parental responsibilities and rights, the courts tend to favour an approach of one parent having residence of the child and the other establishing a routine of contact. Grandparents are usually left with no alternative but to try to maintain a relationship on the back of the non-resident parent’s contact times. This may not be possible or practical and can also lead to accusations that the non-resident parent is shirking their responsibilities rather than spending quality time with the child themselves.

There have been calls in the press for the UK to learn lessons from other countries, such as France, where the law is clear that every child has the right to access their grandparents. Whilst the French model is admirable it does not provide a foolproof solution. One can still envisage situations where court applications will be required to tackle hostile and obstructive attitudes notwithstanding this clear statement of a child’s rights.

Rights of Grandparents

Although we do not have automatic rights in Scotland, grandparents can make court applications for contact (and other) orders. Their genetic and emotional ties to the child would constitute sufficient interest to raise such proceedings. As always in actions relating to children, the welfare of the child is the court’s paramount consideration and the court should only make an order if it considers that it would be better for the child that the order be made than none at all. If a child is considered mature enough, their views will generally be sought. On the whole, our courts are likely to be supportive of a grandparent’s applications for contact unless there is a good reason to keep them apart to protect the child.

If contact is obstructed even after a court order is granted in favour of a grandparent, the courts are likely to take a firm view, with the resident parent potentially facing contempt of court proceedings for failing to comply with the terms of an order. A clear message also came from the European Court of Human Rights in a recent Italian case, where judges accepted that Italy’s failure to enforce a contact order granted in favour of two grandparents violated Article 8 (right to respect for private and family life) and damages and costs were awarded.

Before diving into a court application, grandparents may also consider mediation in the hope that a more amicable way forward can be agreed which may be better for all parties concerned (including the child). Grandparents should be mindful not to leave matters too long, extensive periods where there has been no contact with the child may be prejudicial to their application.

If you would like to discuss any issue arising from this blog further please contact the Family Law team.