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IMPROVING FAMILY LAW IN SCOTLAND: ANALYSIS OF WRITTEN CONSULTATION RESPONSES

CHAPTER SEVEN THE LAW IN CONTEXT: RIGHT OF CONTACT FOR GRANDPARENTS AND WIDER FAMILY

The consultation stated:

There has been pressure to introduce a right of contact for grandparents. The Executive does not consider this to be appropriate but is keen to canvass all views on how the difficult area of promoting contact with the wider family can best be achieved where voluntary agreements cannot be reached.

The consultation asked:

7.1 DO YOU AGREE THAT A RIGHT OF CONTACT TO A CHILD IS NOT APPROPRIATE FOR GRANDPARENTS AND OTHER WIDER FAMILY MEMBERS?

This question attracted a relatively large volume of comment with 160 responses containing a view. Overall, 59% of those who responded were in favour of the proposition that a right of contact to a child is not appropriate for grandparents and other wider family members. Taken as a whole, responses from the individual respondent sector differed significantly from those submitted by organisations, with a minority of 43% of the individual responses agreeing with the proposition compared with a clear majority (81%) of the responses from organisations.

Due to some confusion created by the wording of this question (stemming from the use of the double-negative), these figures should be treated with caution and are indicative rather than precise. Indeed, one comment was, " hope this question will be rephrased as it's potentially misleading" (Indiv 43). A summary of views is provided in Table 10 below.

Table 10: Summary of views on the proposition that a right of contact to a child is not appropriate for grandparents and other wider family members

NB. Percentages may not total 100% exactly due to rounding

It should be noted that in addition to these consultation written responses, a petition concerning this topic containing 2282 signatures was submitted to the Scottish Executive consultation team. The petition was organised by "Grandparents Apart Self Help Groups" and was in favour of fathers and grandparents having a legal presumption of contact with their children/grandchildren. The petition will be taken into account in informing the outcome of the wider consultation on these issues. The remainder of this chapter concerns only the individual and organisation written responses to this consultation.

Commentary in Support of the Proposition that it is Not Appropriate to give Grandparents and other Wider Family Members a Right of Contact to a Child

Many different rationales were presented in support of the proposition. It was clear from a great many of these responses that despite being against the notion of an automatic right of contact, the respondents acknowledged what they perceived to be the key role which grandparents could play in their grandchild's lives and supported a continued relationship wherever this was in the best interests of the child. Reasons for opposing the notion of an automatic right of contact are summarised below:

• A court option to seek access already exists and efforts should go into making this more accessible rather than resorting to an automatic right of contact

(Indiv 12, Indiv 16, Indiv 17, Indiv 25, Legal 32, Indiv 39, LG 50, LG 59, Indiv 81, Pol 104, Couns 124, Char 184, LG 185, Legal 190, Char 213, LG 254, Indiv 311, Char 317, Legal 323) One comment was that such a right of contact might appear to be an attempt to bypass the court's discretion and is really a reflection of the pain felt by grandparents whose relationship with their grandchildren has been affected (Indiv 81).

• Such a right, especially if contested, could exacerbate problems for a child torn between loyalties

(Indiv 6, LG 59, Indiv 68, Indiv 76, Char 127, Char 184, Misc 260, Pol 266, Char 317)

• Agreements made voluntarily are more appropriate and likely to be more sustainable

(Indiv 33, Faith 93, Faith 114, Char 184, Legal 190, Char 258, Couns 259) One view was that such arrangements should not be dealt with legally but hopefully by human nature and the passing of time which usually helps to resolve situations (Indiv 33).

• Granting automatic rights of contact to members of the wider family could create complications such as having to divide up the child's time between all those with such rights

(Indiv 4, Indiv 44, Char 127, Indiv 141, Misc 164, Legal 313) Images were painted of " complex practical arrangements" being created (Legal 313), with a child having perhaps 4 set of grandparents and having to "shuttle" between them (Misc 164). It was remarked that such a situation might, ironically, leave very little time for the birth mother to see her child (Indiv 141).

• Once rights for grandparents have been given, where might this end? Many others may lay claim to such rights (uncles, aunts, childminders, etc)

(Indiv 6, Indiv 7, LG 63, Indiv 110, Legal 121, Char 317)

• The situation could arise whereby grandparents had rights of contact to a child which a birth parent may not have been granted. Access of birth parents to their child should be addressed before other contact rights can be given

(Indiv 3, Indiv 47, Indiv 51, Indiv 134, Char 213, Char 317, Misc 326) One respondent stated that the granting of grandparents' rights was inappropriate as this placed himself, the father, on the same level of rights of contact which he saw as being, " totally insane and unjust" (Indiv 51).

• This would introduce rights without responsibilities

(Indiv 2, LG 63, Univ 122, Char 127, Misc 164, Char 262, Char 317, Char 321) It was argued that this would be against the guiding principles which focused on safeguarding the best interests of the child (Univ 122). It was also seen as contravening the Children's (Scotland) Act 1995 (Char 262). A further comment was that this created an imbalance with all the privileges on the grandparents' side and all the problems on the side of the parents (Char 317).

• Parents are best left to decide who should have contact, and would usually have a very good reason if they denied contact between a wider family member and their child

(Indiv 6, Indiv 7, Indiv 9, Indiv 14, Faith 93, Faith 114, LG 254) One respondent considered that "forced contact" would put the child in a very difficult position and it may not always be in their best interests to have contact with the wider family (Indiv 9). A few respondents remarked that grandparents did not always fulfil their role appropriately. For example, they may abuse alcohol, let the child down and/or come between a birth parent and the child (Indiv 14).

• A right of contact for grandparents and wider family members does not focus on the child's needs and what they want

(FM 88, Couns 100, Legal 208, Char 262)

• Family Mediation is available and more effective in establishing contact arrangements than introducing rights of contact for families

(LG 50, LG 59, Char 75, FM 88, Char 90, FM 194, Char 317, LG 324) It was suggested that more information on the options available to families such as the availability of family mediation would be beneficial in this context (LG 324).

• All cases are different and the availability of rights of contact reduces flexibility for individual families

(Indiv 34, Indiv 116)

• Rights of contact could be open to abuse

(LG 63, Misc 164, Misc 267) It was suggested that parents without access to their child may gain access through their own parents who have been granted automatic right of contact (LG 63) using a "back door" method of access (Misc 267).

• Such rights would not be enforceable

(Legal 150)

A few other relevant comments and suggestions were made. One issue raised by a few respondents was that although they opposed rights of contact for grandparents and the wider family, they would support a right for siblings to have contact with each other (Indiv 16, Legal 186, Legal 208). It was considered that an amendment in the current law was called for which would enable siblings aged under 16 to be able to raise a court action to get a court order to enable them to contact a sibling should they so wish (Legal 208).

Two further suggestions were based on the same theme that children rather than wider family members should be given rights of contact. One idea was for the establishment of a register for grandparents to record their contact details for use in the event of a grandchild wishing to obtain these to contact them in the future (Indiv 6). Another was to make much more widely known to children the availability of S11 of the Children (Scotland) Act 1995 which they could use to acquire contact rights for themselves (Char 90, Misc 202, Misc 326).

Commentary in Opposition to the Proposition that it is not appropriate to give Grandparents and other Wider Family Members a Right of Contact to a Child

Prominent amongst these responses was the extolling of what was perceived to be the great value of grandparents in providing a loving and steady influence on their grandchildren, particularly in times of tension within the child's immediate family. Such a theme ran through a large volume of responses and was often the key rationale provided for the respondent's opposition to the proposition. However, it appeared that many responses had, perhaps, confused the specific issue of the consultation's stance on opposing the introduction of the right of contact, with a different issue of opposing any contact between grandchild and grandparent. Along with some obvious confusion created by the wording of the question, the responses to this question presented various challenges to the analysis. Nevertheless, a limited variety of relevant arguments and comments emerged from responses and are summarised here.

• Grandparents can offer a loving and steady influence of benefit to grandchildren

Argument put forward by a substantial volume of respondents.

• A child should have the right to have access to and knowledge of their grandparents and their wider family

(Indiv 31, Indiv 40, Indiv 48, Indiv 87, Indiv 135, Indiv 167, Indiv 331)

• Wider family rights of contact to a child are needed in the event of a birth parent's death

(Indiv 18, Indiv 60, Char 178, Indiv 252)

• A child's best interests would be served by wider family members having rights of contact over them

(Misc 54, Indiv 66)

• The option is available to go to court to gain access to a child but grandparents should not have to justify themselves in court

(Indiv 13, Indiv 144)

• The option is available to go to court to gain access to a child but the court system is too slow and costly

(Indiv 1)

• Rights should be invoked where grandparents are acting in loco parentis

(Faith 322)

• Rights should be invoked where a child is in looked after care

(Char 213)

• Access to the child should not be at the sole discretion of the birth mother

(Indiv 36)

Finally, the suggestion was made that the issues involved were so important as to merit a wider consultation such as a referendum, " on such an important issue let the people decide" (Indiv 1).

7.2 HOW CAN THE EXECUTIVE BEST PROMOTE CONTINUED CONTACT BETWEEN CHILDREN AND WIDER FAMILY WHERE VOLUNTARY AGREEMENTS PROVE ELUSIVE?

Overall, 103 responses contained commentary of relevance to this question.

For a minority of respondents, the answer was simply that the Executive cannot promote contact in these situations (Indiv 9, Indiv 53, FM 91, Faith 93, Faith 114, Legal 150, Legal 323, Legal 333). It was remarked that sometimes the Executive should accept that there is nothing which it can do (Indiv 333) and that it cannot actually change people and order them to have contact (Legal 323).

A related viewpoint was that the Executive should not intervene (Indiv 4, Indiv 33, Indiv 68, Indiv 74, Indiv 134, Indiv 141). It was recommended that the issue of contact be best left to the parents (Indiv 33) with an acknowledgement that all families do not wish to spend time together (Indiv 4). A call was made for the state to stop being a "nanny" (Indiv 134).

A theme underpinning many responses was that the Government should not intervene directly to promote contact but should promote the voluntary and other services which can provide more specialised help (Indiv 99, Couns 124). Support for local services and voluntary organisations was called for (Univ 122, Char 184), with adequate investment in services such as mediation and counselling (Char 75, FM 82, Couns 100, Indiv 110, Indiv 131, LG 133, Couns 259, Legal 313, Faith 318). One comment was that:

" many agencies such as Family Mediation Scotland and Couples Counselling live a hand to mouth existence and any assistance that the Executive can give to enable such agencies to undertake long term secure planning should be greatly supported" (Indiv 110)

Recurring recommendations were for Family Mediation to be better publicised (Indiv 76, FM 82, Misc 326) and used as an early step to address family difficulties (Indiv 10, Indiv 12, Indiv 20, Indiv 39, Indiv 52, LG 56, LG 59, Indiv 60, Char 71, Indiv 76, Char 90, FM 91, Char 127, Char 144, Indiv 176, LG 254, Pol 266, Legal 313, Faith 322). It was suggested that grandparents should be included in such sessions (Indiv 10, Indiv 60) which should be made more localised and accessible (LG 59). A few respondents urged that Family Mediation should be made compulsory (indiv 20, LG 56, Char 144), although one word of caution was that although Family Mediation might help, with regard to subsequent contact arrangements, " you can lead a horse to water but you can't make it drink" (Indiv 12).

Other forms of intervention were also proposed by respondents. These included Family Group Conferencing (LG 56, LG 59, Char 317), Family Centres/Contact Centres (Char 71, Pol 104, Char 144, Pol 266) and Counselling (Indiv 1, Couns 100, Indiv 116, Indiv 136).

A less intrusive form of promotion by the Executive was suggested by several respondents as using media campaigns to increase the public's awareness of both the benefits of contact with the wider family and voluntary contact arrangements (LG 37, LG 59, LG 63, Char 127, Indiv 137, Indiv 147, Indiv 187, Indiv 205, Char 317). One respondent called for the starting point to be a presumption of access (Indiv 48), with another recommending that any parent preventing access having " to prove convincingly that contact is of no benefit" (Indiv 145).

Other significant themes included the demand that children's views be listened to in attempts to secure contact arrangements (indiv 36, Indiv 42, Indiv 70, Indiv 84, Indiv 140, Char 144, Indiv 145, Misc 260) and that they be given rights of contact in their own right (Char 90, Couns 216, Char 262).

A few other suggestions were made:

• Grandparents should be given greater financial support to help them to take care of their grandchildren (Pol 266)
• Independent advocacy services should be developed for children (LG 133)
• It should be made clear that the issues of maintenance payments and contact arrangements are not linked (Indiv 34)

Many respondents acknowledged that as a last resort, court action might have to be instigated (Indiv 24, Indiv 39, Indiv 43, Indiv 52, Indiv 66, Faith 171, Legal 190, Char 206, Legal 313). Calls were made for courts to be cheaper to use and to work faster (Indiv 22, Indiv 58). One respondent recommended that what they perceived to be a current unfairness in Legal Aid provision between divorcing partners should be addressed (LG 56). Finally, it was urged that once a court had made a contact order that the Executive should introduce better enforcement of such orders (Char 144, Indiv 167 - currently " so easy to flaunt", Indiv 331).

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