Family Law

In Scotland, grandparents’ rights are a common topic of conversation as technically speaking they have no automatic legal rights in relation to their grandchildren. However, a person who “claims an interest” in respect of a child can apply to the Courts in Scotland to be given certain rights. Those rights can include the right to exercise “contact” with the child (or “access” in old language). Self-evidently, grand-parents have in interest in their grandchildren and so it is open to them to apply to the courts to be given the right to see their grandchildren.

Many of you will have seen the recent media coverage regarding the House of Commons debate last week during which some MP’s called for a law giving grandparents automatic rights to see their grandchildren. Whilst this received media coverage north and south of the border, one thing to point out is that family law is a devolved matter and therefore that debate at the House of Commons was not connected to Scotland.

Nevertheless, many are unaware that the Scottish Government are already in the process of reviewing part of the Children (Scotland) Act 1995 – being the relevant legislation in Scotland regarding parental rights and responsibilities in respect of children, The Scottish Government website states that the review of the legislation is “to ensure the interests of children and their need to form and maintain relationships with key adults in their lives – parents, step-parents, grandparents and other family members – are at the heart of any new statutory measures.” A public consultation was launched yesterday (15th May 2018), part of which seeks views on issues such as how children can maintain relationships with those key adults in their lives.

It should be mentioned that, around 14 years ago, during the consultation period for a Bill regarding family law, the Scottish Government considered whether grandparents should have rights in relation to their grandchildren. It ultimately decided that by granting grandparents an automatic right would ignore the views of children, and also it would “fly in the face” of the current legislative framework which focusses on the adult’s responsibilities rather than their rights. Has anything changed in the past 14 years that is likely to result in the Scottish Government reaching a different view this time round? Given that Scottish Ministers have pledged that the interests of children will be at the heart of family justice modernisation proposals, I find it difficult to foresee a different view being reached.

The public consultation closes on 7th August 2018. Following that date, the responses will be analysed and a report prepared. As for the ultimate outcome of the review – watch this space…

Nicola Kerr

Nicola Kerr

Associate at Brodies LLP
Nicola is an Associate who specialises in Family Law. She advises clients on a broad range of family law issues including separation, divorce, cohabitants' rights, pre-nuptial agreements and child related issues such as residence and contact disputes, adoptions and the Hague Convention on the Civil Aspects of International Child Abduction. 
Nicola Kerr