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Child contact and COVID-19

Being separated and navigating contact with children can be hard enough, but what about in the midst of a pandemic?

The prime minister’s address to the nation where he suggested people shouldn’t visit other households sparked questions from concerned parents and guardians about what would happen with children who split their time between two households.

Scottish first minister, Nicola Sturgeon, later confirmed children of separated parents should continue to exercise contact as normal, but take social distancing rules into account. This position was confirmed by the Court of Session in a guidance note on 27 March.

Court situation

The Court of Session says that even in cases where there is a court order for contact, parents need to act sensibly, safely and in line with government guidance. It adds courts are not saying children shouldn’t be moved between homes.

Parents should try to adhere to the court order detail unless they can agree to vary the order temporarily.

Now more than ever, it’s also important for both parents to communicate at this difficult time and try to reach a solution that works.

If there is an informal arrangement, parents should discuss the situation between them, bearing in mind family circumstances including the child’s health, risk of infection of vulnerable individuals in either household.

And, if parents with a court order agree to vary it, they should keep a note or record of the change between them: an email or text would suffice.

If they ultimately agree to temporarily stop face-to-face contact, parents are encouraged to consider alternative arrangements such as FaceTime, WhatsApp, Zoom, or simply via the telephone.

What happens if there’s an issue?

If one parent believes there is a risk and that by adhering to the court order they may be going against government guidance, but the other parent isn’t of the same view, then the parent who believes there’s a risk can exercise their parental responsibility to vary the order.

If this happens and the other parent still doesn’t agree with the change, once COVID-19 restrictions are lifted, the court may take account of what happened and consider whether each parent behaved reasonably in light of government advice.

Meanwhile, the courts are clear only urgent business will be considered at the moment. Whether failure to comply with an order comes into that category is unclear, like much else in this fast-moving scenario.

As ever though, each case will turn on its own facts.

Emma Somerville

Emma has a wealth of experience of appearing regularly in the sheriff court in both criminal, child and family cases. She assists clients, both in and out of court, with a wide range of other family matters, including separation; child residence and contact; cohabitation agreements; adoption; and divorce.

Posted, 02 April 2020 by Emma Somerville
Categories: Coronavirus | Coronavirus and family law | Family law | Private client