Justice 1 Committee, 01 Oct 2002

Meeting date: Tuesday, October 1, 2002

Official Report 279KB pdf

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Petition

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Children (Scotland) Act 1995 (PE124)

The next item on the agenda is petition PE124. I have a paper that sets out the background to the petition and a note from the Scottish Parliament information centre. We are all pretty familiar with the Grandparents Apart Self-help Group. It has been lobbying the Parliament for some time now, and I do not say that in a condemnatory fashion.

The SPICe briefing refers to the law on parental responsibilities and rights. There are alternative courses of action for us. We could write to the Minister for Justice—we could have told him that we were going to do that—asking whether it would be possible to amend the Children (Scotland) Act 1995 through the forthcoming family law bill. The Children (Scotland) Act 1995 does not name grandparents as having a built-in right to contact or residency with their grandchildren. They can apply for it, but they have to show that they have an interest.

We could write to the Sheriffs Association asking it whether it can provide information on the number of applications received and granted to grandparents under section 11 of the Children (Scotland) Act 1995, which is a catch-all section. Alternatively, we could note the petition and take no further action. Before I tell members what I fancy doing, I am happy to hear views.

In the discussions and correspondence that I have had with the group, it has claimed—no doubt correctly—that on occasion grandparents are dealt with in an unsatisfactory way either by sheriffs or by social workers. The members of the group feel disparaged and they think that their position is ignored and that they are humiliated in the whole exercise. Is it possible to ask the Lord Advocate or the Minister for Justice—I do not know which is more appropriate—to publish guidance to say that grandparents should be treated more seriously?

I do not know, but I do not think that the Lord Advocate would deal with that. I would have thought that the sheriff principal would deal with it. Can Lord James help me?

We would contact the Minister for Justice.

Yes, but I am talking about policy guidelines, perhaps for sheriffs.

Jim Wallace would deal with that.

We can find out. Donald Gorrie wishes to find out what policy guidelines are put down for sheriffs.

That would be a start. We could ask them to be more sympathetic to the grandparents. I do not doubt that you have heard stories about this sort of situation. I have heard very bad stories about the fact that the system is entirely unsympathetic to grandparents and they get a worse than fair deal.

I do not know whether I would be happy about asking sheriffs to be more sympathetic. I would want to know what the guidelines were first, because there are many interested parties who might also deserve a sympathetic approach, such as natural fathers.

You mentioned the desirability of finding out some details about the number of cases that have been brought under section 11 of the Children (Scotland) Act 1995. I, too, would be interested in obtaining such details. I would also like to obtain some information about the percentage of cases in which grandparents were given right of access to the children, because that would help to flesh out the extent of the issue.

I agree with Donald Gorrie that we should find out what guidance is issued. I presume that such information would be issued to sheriffs in the form of a court circular and that the sheriff principal would be responsible for doing that, on the guidance of ministers. It would be helpful to find out that information.

If the Executive is not persuaded that there is a need to amend the Children (Scotland) Act 1995, it could outline some ways in which it thinks that the issue could be progressed. It appears that the Executive does not think that any action on the issue is necessary. There is a problem, so it would be useful to consider what other routes could be taken. If guidance has been offered to sheriffs, we should ask why that could not be pursued.

Senators at the Court of Session would also be involved in relation to cases in the senior court.

We should look for guidance on what other routes for dealing with the issue are available, if the Children (Scotland) Act 1995 is not to be amended.

The suggestions that we have come up with so far are policy guidelines to sheriffs and senators and a desire for data. If the Executive does not intend to amend the Children (Scotland) Act 1995, we want to know what solutions it has to offer, if it thinks that solutions are required.

When we write to the Minister for Justice, it is important that we should do what Michael Matheson suggested. The other possible avenue would be to contact children's organisations. When there is contact with grandparents, the experience of the child is the important issue. It is right that grandparents should have rights, but we must be clear about whether such rights would always be in the best interests of the child. It would be worth exploring further whether there are situations in which a child does not want to have contact with their grandparents. We should perhaps approach children's organisations for case studies that would set out the child's experience, which is the crucial element. I am sure that the petitioners would want that to happen.

In the event of any application for rights in relation to a child, the test is whether the granting of such rights would be in the interests of the child. We all know that parents do not have automatic rights to contact their children or to reside with them.

The child's interest is paramount. Grandparents have a special role in a child's life, but so do aunties and uncles and the extended family. It strikes me that there are parallels with victim support issues. When a marriage breaks up and children are at the centre of the dispute, there are issues to do with how the extended family copes with the situation. If the court process ignores those issues, people reach a situation such as that in which the petitioners have found themselves, in which they grieve without obtaining any redress.

I would like more support systems to be available to deal with family break-ups. When one side gets custody of the children, the feuding between the husband and wife can extend to the extended family, perhaps unjustifiably. People need help in such situations. It might not be the case that we should write it into law that a grandparent or a cousin or an aunt should have special rights. People can apply for rights of contact. I do not know that I would want to extend such rights, but it is clear that some people feel that they have not been paid attention to, which is not good.

It would be legitimate to write to the Minister for Justice and copy the letter to the Lord Advocate. It would also be legitimate to write to the Sheriffs Association and children's organisations. I note that the Scottish Executive sees no case for introducing a new procedure to provide grandparents with parental responsibilities and rights. The principle that we are bound to support, and which is in the Children (Scotland) Act 1995, is that the child's interests must at all times be paramount. However, the issue is contentious, because grandparents and parents can sometimes be at loggerheads. I am not convinced that a legislative change is necessary, and we would not have time to implement one between now and the May election.

Interestingly, grandparents would not normally be given an intimation of proceedings involving children—although it could be given—so they might not be aware that proceedings on the residency of their grandchildren or on making contact with them are taking place. There may be merit in addressing that.

We are entitled to ask for information on existing practices, procedures and guidance, to ensure that such matters are being dealt with properly.

In addition to asking for data on applications under section 11 of the Children (Scotland) Act 1995, I suggest that we ask—if it is possible to retrieve the information—how many applications relating to children were intimated to the grandparents. In other words, how many times did the sheriff take it upon himself, without a submission from either the pursuer or the defendant—the mother or the father—to say, following the reading of the writ by the clerk, "In the circumstances, we should intimate this to the grandparents"? It is always possible for a sheriff to do that. At least grandparents would know that something was going on, when otherwise they would not. I am thinking of grandparents who live outside Scotland, for example in England, and who only see their grandchildren during the holidays. Is the committee happy to request information on the number of cases in which such intimations were made?

Members indicated agreement.