THE LAW SOCIETY of SCOTLAND on Grandparents Rights

THE LAW SOCIETY of SCOTLAND

www.lawscot.org.uk

26 Drumsheugh Gardens Edinburgh EH3 7YR

Legal Post LPI Edinburgh -1

T: 0131 2267411 F: 0131 225 2934

Textphone: 01314768359

Mr Jimmy Deuchars

Grandparents Apart UK

22 Alness Crescent Glasgow

G521PJ

Our reference: LJ/JJ 2 December2010

Dear Mr Deuchars

Many thanks for your latter dated 6 October. As advised in my letter of 22 October I referred your enquiry to our Family Law sub-committee and have since received the following advice.

Contact to a child is one of the orders that can be sought from the court which is one of the parental rights that are embodied in the Children (Scotland) Act of 1995. The issue of contact between parents is sometimes disputed and in these situations it is necessary for the parent seeking contact to apply to the court for a contact order. This right to apply for a contact order however is not restricted to parents. Anyone who has an interest in a child, whether it be a grandparent, step-parent, aunt, uncle etc. can apply to the court for a contact order if they can establish that they have an interest in the child. Clearly a grandparent, on the face of it, has such an interest. Grandparents therefore have the same rights as a parent to apply to the court for a contact order.

Where confusion is perhaps being caused is in the reference to "automatic legal right of contact". A parent does not have an automatic legal right of contact. What a married parent has is automatic parental responsibilities and rights, one of which is to maintain contact with a child who is not living in their household. To enforce that right of contact the parent has to apply to the court for a contact order. There is therefore a distinction between a right and the enforceability of that right which is where confusion might arise.

As the letter you received from the Scottish Government indicated, the policy decided recently was that it would not be appropriate to extend automatic parental rights and responsibilities beyond parents to others such as grandparents. However, as indicated earlier, anyone who has a right to a child can apply to the court for a contact order which is what a parent would have to do in any event to enforce it. There is no prohibition on grandparents seeking contact orders from the court. Grandparents have not however been granted automatic parental responsibilities and rights.

Another way to look at it is if a grandparent did have an automatic

Legal right of contact to their grandchild, and this was being refused by the parents for whatever reason, then the grandparent would have to apply to the court for a contact order to enforce it. This is exactly what a parent has to do under the law as it stands. There is therefore no great prejudice being a grandparent not having automatic parental responsibilities and rights from the point of view that having an automatic right does not mean that you can enforce it without having to apply to the courts.

I hope this letter explains this distinction more clearly to you and that perhaps by looking at the position from a slightly different angle it illustrates that the assertion by solicitors that grandparents have rights in that they can apply to the court for a right of contact just like parents do, is correct.

Yours sincerely

Lorna Jack

0131 476 8157

lornajack@lawscot.org.uk

Chief Executive