With lockdown in place again for the majority of Scotland, it is important to know how the rules deal with the situation of separated parents who have contact arrangements in place to let the child see both parents.
For those whose cases have gone to court, it is also important to be aware of how the decisions made now could be viewed in the context of future litigation.
Guidance issued by the Scottish Government to minimise the risk of spreading Covid now has legal effect, stating generally that everyone must stay at home as much as possible, and can only leave for limited reasons. These ‘essential purposes’ include work, care, essential shopping or for daily exercise, but also includes for the purposes of participating in or facilitating shared parenting. If necessary, this would be a reason to leave your local authority area.
This means that where parents do not live in the same household, children can continue to move between their parents’ homes for the purpose of contact, and someone can take them.
The courts have recognised that there may be some genuine concern from parents about how to remain safe while continuing contact arrangements. Updated guidance on this matter has been issued which states that where parents have a court order or formal agreement regarding child contact in place, the arrangements must be adhered to. However, alternative arrangements can be made, so long as both parents are in agreement. The guidance suggests that it would be sensible for each parent to record the agreed arrangements in a note, email or text message sent to each other. A lawyer’s letter would record the fact. If you have a more informal arrangement for contact, parents are advised to discuss how best to approach the situation and make a decision on how the contact should operate based on the circumstances.
The guidance recognises that there will be some households which include self-isolating or shielding individuals, and some parents may live a long distance away from each other and will be concerned about travelling, even if it is within regulations. In these situations, parents are expected to communicate with each other and agree on a practical and sensible solution. For example, the venue at which contact takes place could be changed to reduce the risk to a household which includes a person who is shielding, or to limit the need for the child and the other parent to travel.
The court does not have to formally issue an Order or amend an existing Order to change the location for drop-off or collection of the child.
The guidance also makes it clear that if there is any reason that an Order that a child spends time with a parent cannot be complied with in person, such as due to health, alternative arrangements should be attempted to maintain regular contact. Parents are expected to at least try to facilitate ‘remote’ contact such as by Facetime, Skype or Zoom, which are all able to be downloaded to a phone or a PC.
With the courts now dealing with both urgent and non-urgent business again, it is important to recognise that the case could be brought back in front a Sheriff to determine what should happen if the parents are unable to agree. The Sheriff will be able to hear about the behaviour of the parents and would be bound to take into account how reasonably (or otherwise) each has been.
So any parent who tries to take advantage of lockdown as a means of preventing contact should be aware that in the long-run their actions could have consequences for their case.