Under the Children ( Scotland ) Act 1995 only
a child’s mother and father (provided he was married to the
mother at the time of conception or subsequently) will have
automatic parental rights. Grandparents are often very
important individuals in a young child’s life and their
input in the family’s life is very often relied upon by
parents and children alike.
Under the Law Reform Parent and Child ( Scotland Act) 1996
any person with an interest may apply for an order in relation
to parental responsibilities and rights.
This is obviously a very wide category. In our
experience with the possible exception of unmarried fathers
grandparents are the most common pursuers in actions for
parental responsibilities and rights. In a changing world the
role of a grandparent can often be a very important one for both
parent and child. The grandparent will often be the first person
looked to for child care and for guidance in the parenting role
itself. Unfortunately in many cases when a family dispute arises
a grandparent will often find him or herself cut off from the
child’s environment and this will invariably cause a great
deal of upset and distress.
The first step when consulting a solicitor in this sort of
case is opening correspondence with the child’s parents in the
hope that contact can be established. If this proves ineffective
then an action for parental responsibilities and rights will
have to be considered. To have any prospect of success the
pursuer will have to demonstrate that it necessary for the court
to make an order ( i.e. that agreement cannot be reached ) and
that it is in the best interests of the child that the order
sought is granted.
In the more extreme cases grandparents can, and often do,
raise proceedings for a residence order. In our experience in
this sort of case the child’s natural parents are for whatever
reason unable or unwilling to look after the child and the
applicant grandparent is all the child has. In such a case the
child’s parents will often have extensive contact with the
child but the effect of the residence order is that the
grandparent is the custodial parent with all of the advantages
and responsibilities that that brings.
When the case gets to court the Sheriff will call for reports
on the child’s circumstances and depending on his or her age
the child’s own views can be taken into account. These reports
which are prepared by the local social work department or a
solicitor with wide and extensive experience of family law cases
are taken very seriously by the court. In the more extreme cases
the social work department may have already been involved in the
case and identified the grandparents as the closest to and most
suitable individuals to look after the child.
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