Anyone who has walked around any town in Scotland, over recent years will not fail to have seen many children in the care of their grandparents. According to the Scottish Government, as many as 69% of families now rely on grandparents for childcare. To many parents these grandparents are an invaluable source of support.
There can be little doubt that grandparents also derive huge pleasure from spending such time with their grandchildren, being closely involved in their growth and development. Perhaps most importantly though, the grandchildren are being cared for by close family members who love them and want to nurture them as best they can. The positive benefits for the grandchildren in such arrangements cannot be overestimated. However sometimes children lose contact with their grandparents. This can be for a range of reasons including a family quarrel, a relocation or a change in who is caring for the children. The latter can arise as a consequence of the parents separating. Research indicates that in around 40% of cases where parents separate, one set of grandparents end up losing all contact with their grandchildren.
As a family law solicitor practicing locally, my colleagues and I have seen a significant rise in grandparents contacting us looking for advice as a result of contact with their grandchildren having been stopped. In the midst of an undoubtedly difficult period in the life of their own son or daughter, the desires of the grandparents to see their grandchildren and, most importantly, the desire of the grandchildren to see their grandparents, can often be forgotten or pushed to the bottom of the list of priorities while the parents themselves dispute their own contact and residence arrangements. It is only right that the priority should usually be in resolving the children’s arrangements with their own parents and this is recognised by the Courts. However, there will often come a time, once the dust has settled, when the children’s relationships with their wider family needs to be considered.
The grandparents of a child resident in Scotland do not have an automatic legal right to contact with their grandchild. There are, however, certain remedies available to them. If grandparents consult with a family law solicitor about this matter that solicitor will always, firstly, try to ascertain what steps they have taken themselves to speak directly with the parents to sort out arrangements for contact with their grandchildren. If there is difficulty in the grandparents discussing these matters with the parents then the solicitor may then suggest they attempt mediation. This will bring the conflicting parties together, face to face, to discuss the issues and try and reach a resolution. An impartial, trained mediator would assist parties through this process. If that fails or if the parents do not agree to take part in such a process (it has to be voluntary) then the grandparents could then try using Collaborative Family Law to resolve the problem. This is a different method of dispute resolution which is growing in popularity in Scotland. In Inverness there are eleven family law solicitors trained in the collaborative law method. There is a focus on negotiating an agreement and all negotiations take place in meetings attended by parties and their respective solicitors. There is an added incentive to reach an agreement using collaborative family law insofar as the solicitors who conduct the settlement discussions cannot raise, or even threaten to raise, a court action on behalf of their client.
If mediation is unsuccessful or not even attempted or if collaborative family law is not attempted then the final course of action available to a grandparent is to instruct their solicitor to raise a court action seeking a court order for contact. Family law solicitors would always advise grandparent clients to proceed to court with caution in such circumstances. The very nature of court action is adversarial and, the raising of such an action by grandparents against their own son or daughter and/or their son or daughter’s former partner or spouse, has the potential to further damage an already fragmented family dynamic. Conversely, it also has the potential to remedy the situation. What needs to be borne in mind, at all times, is that the courts primary concern is with what is in the best interests of the children. The grandparents would have to persuade a court that it is in the best interests of their grandchildren that the court grants an order for contact with them. Unfortunately but inevitably, the outcomes of any court action are unpredictable. This is one of the reasons my colleagues and I would always advise that an alternative method of dispute resolution is attempted first before raising an action. If, after the court action has been raised parties are still not able to reach an agreement between themselves, then the raising of a court action hands control of the matter to the Sheriff. All Sheriffs will approach the matter in different ways. However, they will always have the best interests of the children at the forefront of their minds when making a decision.
For more information regarding family mediation see www.relationships-scotland.org.uk
For more information regarding Collaborative Family Law see www.consensus-scotland.com
Sarah Lilley is an Associate with Innes & Mackay in Inverness. She has practiced exclusively in family law for the last seven years and is trained in Collaborative Family Law. She has appeared in courts across Scotland representing clients in a wide range of family related disputes.