Grandparents and Contact: 'Rights v Welfare' Revisited

Abstract

This article seeks to examine the current position in law of members of the extended family involved in contact disputes. It attempts to locate the law in the context of renewed policy interest in the role of the extended family as well as that of pressure from organizations representing grandparents for enhanced legal status for their members. It also seeks to locate the discussion in the context of growing debate about the utility of rights embodied in constitutional codes and human rights conventions in resolving disputes between family members. In particular, the article sets out to assess the extent to which grandparents are currently successful, both here and abroad, in using the courts to maintain links with their grandchildren and then goes on to explore the potential of Article 8 of the European Convention on Human Rights, incorporated in the Human Rights Act 1998, to provide stronger remedies. We conclude, referring to the jurisprudence of the USA Supreme Court as well as that of European institutions, that new rights are likely to do little to change the domestic legal landscape in relation to private law contact disputes. We argue that rights will not necessarily ‘trump’ prevailing constructions of welfare which place the child's best interests firmly within the nuclear family under parental control.

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