When a step parent or grandparent's relationship with a child's parent breaks down, that can make things difficult in maintaining a relationship with the child. So, what are the legal options if that happens?
There is no legal definition as to who is classed as a 'step parent' in Scotland, although in most cases it would be the cohabiting partner or the spouse of a child's mother or father.
Step parents, whether married or unmarried, have no automatic legal rights and responsibilities in relation to step children. While there is provision in England and Wales for step parents to obtain parental responsibilities by agreement with the biological parent or parents, that's not the case in Scotland.
If a step parent wants to obtain parental responsibilities and rights here, they must apply to the court, even if they are still in a relationship with the child's parent and the parent has no objections.
If a step parent and parent separate, and the child and/or step parent want to maintain regular contact, but the child's parent objects, the step parent can apply to the court for a contact order. Following a recent change to the law in Scotland, the court must now consider a "child’s important relationships with other people” whenever it makes decisions in relation to that child; "other people" being any person – parent, step parent or otherwise - who plays a part in the child's life.
A significant proportion of families in Scotland rely on grandparents for childcare, enabling a child to forge a close link with that individual or individuals from an early age.
Sometimes though, that relationship can be severed – for various reasons but commonly, when the relationship between the child's parents breaks down. In a high proportion of instances when parents separate, grandparents lose contact with their grandchild.
The issue of grandparents' 'rights' has come under close scrutiny over the past few years, with the Scottish Government consulting widely on the topic. Indeed, the issue of whether or not to change the law to include a presumption that children benefit from contact with their grandparents was discussed back in 2018 by a Scottish Parliament cross-party working group – a discussion I took part in – and which contributed to the creation of the Children (Scotland) Act 2020.
Ultimately, the decision was taken not to specifically mention grandparents in law.
As a result, the legal stance for grandparents is very much the same as with step parents. The law says that, if a court makes a decision about a child's living arrangements, consideration must be given to "the child's important relationships with other people."
In Scotland any person, be they a child's parent, step parent, grandparent or sibling, can apply to a court for an order regulating the child's contact and/or residence arrangements. In the vast majority of situations, it is best that negotiation is attempted first. It is rarely the case that proceeding straight to litigation is the most appropriate way forward. There are alternative ways to resolve disputes, with methods such as mediation or collaboration designed to help find a solution, without either party having to go to court. In the event that court action does become necessary though, it is very important that every adult involved remembers that the court's primary concern is to decide what is in the best interests of the child.
Article originally appeared in the Inverness Courier.