Many parents are trying to balance the guidance from the Government to socially distance and stay at home as much as possible with also wanting to comply with a court order or agreement relating to the care and contact arrangements for their children. The Government guidance, at the time of writing, is that parents who do not live together and who share care of their children are permitted to take their children to the house of the other parent for contact.
Further guidance and clarification has however been issued by the Lord President in relation to compliance with contact arrangements and orders of the court. That guidance is available here.
In general terms, the guidance provides that where contact can safely take place according to the existing arrangements, then it should. Parents are encouraged to work together and communicate effectively to put arrangements in place which are sensible and pragmatic. If that means varying the terms of a court order by agreement temporarily, then that is fine. This may be because of concerns about the number of handovers, or because one parent has had changes to their work schedule because they are a key worker, or because grandparents are no longer able to assist with care arrangements. If parents decide to change the arrangements by agreement then it would be sensible to record this in some way such as an email or text message.
The difficulty comes where parents are not able to agree and where one parent wishes to suspend contact due to safety or health concerns because of Covid-19. Clearly that is a personal and difficult decision which has to be taken with care and consideration and the guidance provides that a parent can use their parental responsibility to make that decision. The guidance also provides however that where such a decision to suspend contact is taken and is later reviewed by the court the court is likely to consider whether the parent was acting reasonably at the time based on the information available to them together with specific evidence which affected the child(ren) or family.
If contact is suspended due to concerns about Covid-19 the guidance provides an expectation that some other form of contact should take place instead such as FaceTime/Skype contact or telephone contact so that the normal contact routine is disrupted as minimally as possible.
Covid-19 is clearly going to have an impact on families and the normal operation of contact but the over-arching message is one of sensibility: make decisions which are proportionate, reasonable and justifiable. Make decisions which are in the best interests of your children and, as much as possible, communicate and work with your co-parent to minimise the disruption to routine and relationships. While for the moment it is difficult to have the court review care arrangements, that will not continue in perpetuity and any decisions may need to be justified at a later time as having been taken in the children’s best interests based on the evidence and circumstances of the time.
Above all be sensible and understanding and take of yourself and each other.
If you require any specific guidance then please contact a member of the Blackadders Family Law Team who would be happy to assist.
Blair Duncan, Solicitor
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