It is often said that grandparents do not have “rights” of access to their grandchildren but this is only half-true; in reality they do not have automatic rights in this respect. In order to gain those rights, they would have to apply to the court for an order for contact.
What sways the court in any decision is the effect the claimed rights will have on the children.
If it is deemed that having grandparents in their lives is positive for the children then the court is likely to grant access, though to what degree depends on the circumstance of each individual case.
However, if a situation occurred whereby access to grandparents was considered detrimental to the children then it could be denied – even if the grandparents were themselves entirely without fault.
Beyond the concept of “parental rights and responsibilities”, even natural parents will not automatically have any rights to contact with a child either. By looking at matters from the point of view of the child, grandparents have the same rights to ask a court to make an order in relation to a child as anyone else.
In assessing what is in the best interests of a child, the court will take into account a potentially limitless number of factors.
Most commonly, it will look at any past relationship a child may have had with the person seeking an order; the child’s current living arrangements; and the likely impact that an order may have on that child.
In reaching a decision, the court may take evidence from any source, and commonly does so from people with an involvement in the child’s life or in the form of specially commissioned welfare reports.
In certain situations involving the Children’s Panel, Children’s Reporter and social workers, grandparents can be classed as having an “interest” in a child’s life which means that their views can, and ought to be, sought when making decisions regarding the child.
This would also give the grandparents the right to ask for any aspect of the child’s welfare to be investigated but would not give them the authority to impose their views as to what was best for the child.
• Greg Flett is a solicitor with the Edinburgh-based law firm, McKay Norwell WS