Child welfare issues rarely seem to be out of the news these days and the rights of grandparents to maintain contact with grandchildren seems to be  continuing  to exercise a significant part of the community. The arguments have been rehearsed, but have they been properly understood?

The relevant  law is largely contained within the Children (Scotland) Act 1995 which, in turn, derived many of its principles from the United Nations Convention on the Rights of the Child. It follows therefore that this was not some ad hoc piece of parochial legislation, but on the contrary, it was a wholesale review of child law in Scotland, and which heralded perhaps the most important cultural change of all - namely a shift of emphasis from the rights of parents to the rights of the child.

The legislation introduced a number of parental responsibilities and rights (PRRs). Parents were given rights only to enable them to fulfil their parental responsibilities. These parental responsibilities in brief are:

  1. to safeguard and promote the child's health, development and welfare;
  2. to provide guidance and direction in a manner appropriate to the stage of development of the child;
  3. where the child is not living with a parent, to maintain personal relations and direct contact with the child on a regular basis;
  4. to act as the child's personal representative.

As the term implies, only parents have automatic PRRs, but that is not to say that no one else (such as a Local Authority or relative) cannot  acquire such responsibilities and rights. The legislation allows anyone showing "an interest" to apply to the court for PRRs and theoretically there is no limit to the scope of who can apply so long as they show an interest and can satisfy the court (i) that the making of an order is better for the child than making no order at all and (ii) that the order is in the child's best interests. The interests of the party making the application are largely unimportant. So for example the distress of a well meaning granny who is denied contact with a grandchild is regrettable, but largely irrelevant to the legal arguments.

Against that background therefore, it is plainly an absurd  proposition that any particular group (other than the child's parents) should automatically be given PRRs.  That is not to diminish in any way the very valuable role which many grandparents provide in looking after children when for whatever reason the parents are unable to do so. But why should PRRs be given specifically to grandparents rather than siblings, cousins or close family friends? It would be quite illogical and contrary to the governing principles of the 1995 Act and the UN Convention.

There have been many cases where a third party  (such as a grandparent) has applied to the court for PRRs and the success or otherwise of such applications has been determined by the necessity for the order and the benefit to the child. In a situation where a single mum asks her parents to care for her child because she can't, there is no necessity for any order at all unless the mum chooses to interfere with the grandparent's parenting, or blocks key decision making (such as approving medical procedures for the child, education issues and the like). Keep in mind also that all parties with PRRs are obliged to consult with each other anyway in respect of any matters of major importance affecting the welfare of the child, so in practice, no single individual has total legal autonomy to deal with such issues where there is more than one individual with PRRs.

The reality is that families have extensive flexibility to reorganise family relationships by agreement as they see fit without external interference, provided that child welfare issues are protected. In practice many families do (and have always done) that even if it is just a friend or relative doing some regular babysitting to allow a parent to get to work. If a grandparent considers that they are being excluded from the shared responsibility of bringing up grandchildren and that the children are suffering on account of that, the first step should be to explore some form of mediated solution by discussion between all parties. If that fails then any litigation will need to fulfil the strict criteria mentioned above. The "no order principle" requires the court to make no order at all unless the judge is satisfied that the making of the order is necessary and in the best interests of the child. The best interests of the applicant is not the test.

These are sensitive issues for some grandparents, but if the parents of a child decide that (for whatever reason) they do not want their child to have contact with any particular family member, the law says that is their prerogative (unless the child's best interests would be best served otherwise). When you think about it, how difficult would it be for a couple who had "the in laws from hell", if the in laws had automatic contact rights to their children? In other words, there are no special privileges automatically conferred on any particular group (other than parents - and to some extent Local Authorities) and the majority view is "why should it be otherwise?". Not all grandparents are great grandparents just as not all parents are great parents. The best interests of the child principle has changed the landscape - probably for good.