Grandparents’ rights

Divorce and family breakdown can be very difficult for all involved. But an issue that is all too often overlooked is the situation which can arise between grandparents and their grandchildren.

In the most acrimonious of family break ups, one set of grandparents can find themselves struggling to maintain contact with their grandchildren.

Grandparents in the UK have no automatic legal rights in relation to their grandchildren.

When relationships go wrong and difficulties cannot be resolved, grandparents have to apply to the court to obtain the legal right to see their grandchildren. This has potential legal costs and can take its emotional toll on all those concerned.

Grandparents are in the news

Grandparents’ rights have been big news at Westminster this month, with a parliamentary debate on the topic (2 May 2018). Subsequent media reports in a number of newspapers suggested that a change to the law in England and Wales might be imminent.

So is the UK Government committed to changing the law in England and Wales? Well, no, not really – or not yet anyway.

Furthermore, are Scottish grandparents being left out of all this policy attention being focused on grandparents?  Not at all – in fact it was a big week last week for family law in Scotland, with the publication of the Scottish Government’s long awaited consultation on family law.

This chunky and wide-ranging document will get a blog post of its own in the near future. However, this week note simply that the Scottish Government is now consulting on grandparents’ rights – a step the UK Government is yet to take.

SPICe’s guide to grandparents’ rights

If you want to be in a good position to follow future policy developments associated with grandparents – or simply want to provide support to grandparents in your local constituency – SPICe can help you.

Below is our quick guide to the current law, north and south of the border.

This is followed by a handy summary of some of the policy activity to date across the UK.

For more detail on the law which applies to Scotland, see the new SPICe briefing on grandparents: Contact between grandparents and their grandchildren

Quick guide to the current law

In Scotland, Part 1 of the Children (Scotland) Act 1995 sets out the legal framework that applies to grandparents. The 1995 Act was last reformed in 2006 (with no relevant changes for grandparents) and is currently one of the main subjects of the Scottish Government’s wide-ranging consultation.

In England and Wales the relevant legislation is the Children Act 1989. The 1989 Act was substantially amended in 2014 but, again, not in a way that significantly affected the substance of grandparents’ rights.

Grandparents living in Scotland must apply for a contact order in the local sheriff court. In England and Wales the equivalent court order is a child arrangements order, and the case will be heard by the specialist family courts.

What the systems have in common is that the courts will decide the case according to various statutory criteria, with the child’s welfare the paramount consideration. In other words the legislation is child-centred, not grandparent-centred, and there is no guarantee of success for the adults involved.

The law south of the border puts an extra procedural hurdle in front of grandparents which does not exist in Scotland. The grandparents must ask the court’s permission to apply to the court at all, referred to as seeking leave of the court. The aim of this extra step is to filter out cases without merit at an early stage.

There has been policy debate about whether this hurdle should be removed, but so far it remains.

Possible reform – what policymakers have to consider

In terms of future reform, policy makers (north and south of the border) have to wrestle with various issues.

First of all, in many situations, grandparents, like other members of the extended family, can make a valuable contribution to a child’s life.  In fact, when parents are separating or divorcing, grandparents can provide stability and continuity during a difficult period in a child’s life.

However, there will always be difficult and distressing cases where a child being in contact with grandparents is decidedly not in that child’s best interests. An example would be where there is a risk of physical or emotional harm to the child.

The difficult and distressing cases are the ones that have so far made policymakers shy away from automatic legal rights for grandparents.

However, is there another way the legal system can strengthen the rights of the ‘good’ grandparents, to the benefit of the children concerned?

Policy activity so far

This brings us back to the parliamentary debate in Westminster this month.

During the debate the idea that there should be a legal presumption that contact between grandparents and their grandchildren is in the child’s best interests was raised.

In other words, the law’s starting point would be that contact is a good thing for children in most cases. It would be up to the parent opposing contact to argue in court that the general assumption does not hold true in a particular case.

In the Westminster debate, the Justice Minister, Lucy Frazer MP, said only that she would look carefully at this issue in the context of wider family law reform. The broad nature of this commitment was not always clear from the media coverage.

The form and timing of any future work is not known. For a quick summary of the policy history to this topic see section 6 of the briefing prepared by SPICe’s colleagues at the House of Commons Library.

On the other hand, what the Scottish Government has said is much more interesting. Its consultation document outlines some pros and cons of possible reform to the law relating to grandparents. Then it asks the fundamental question – should we be considering a similar legal presumption for grandparents in Scotland?

The consultation is open for responses until 7 August 2018.

Sarah Harvie-Clark, Senior Researcher, Civil Law