Children’s residence and contact with children in Scotland during the Coronavirus/COVID-19 crisis

The Scottish position on this was not clear until 27 March 2020 when the Lord President issued Guidance on Compliance with Court Orders relating to Parental Responsibilities and Rights.

Scottish position similar to England & Wales position

The position now adopted for Scotland is very similar to the guidance issued by Sir Andrew McFarlane, President of the Family Division in England & Wales, summarised in Grainne Fahy’s blog on 25 March 2020. The Scottish guidance (hereis a clear and concise statement intended to offer general advice to parents and carers whose children are the subject of Scottish court orders.

Parental responsibility for a child who is the subject of a court order remains with the child’s parents or carers and not with the court.

The guidance expects that those caring for children should act sensibly, safely and in line with both Scottish and UK Government advice. The guidance itself provides helpful links to the relevant government websites.

Exemption to the general “stay at home” requirements for separated families during Coronavirus

In short, there is a specific exemption to the general “stay at home” requirements for separated families. The advice is the same as that in England & Wales which is if you and your partner stay in separate homes but take turns to look after your children you can continue to do so.

The Scottish guidance is clear that if there is a court order in place then that should be adhered to unless those who have the relevant parental rights and responsibilities agree between themselves to vary the arrangements.

Communication between parents will be key during Coronavirus

As the guidance emphasises communication between parents will be key to managing these situations and reaching sensible practical solutions. Parents are positively encouraged to discuss and agree alternative arrangements. This is reflective of Scots Law in matters of residence and contact generally. Parents should always try to communicate as constructively as possible and try their best to agree matters relating to their children. Ordinarily, the court will only intervene if agreement cannot be reached.

Where one parent is sufficiently concerned that complying with the court order would be against current government advice but agreement cannot be reached on an alternative arrangement, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in court, the court is likely to look to see whether each parent acted reasonably and sensibly in the context of the government guidance in place at that time and any specific evidence relating to the child or family.

What if spending physical time with a parent during Coronavirus is not possible in Scotland?

If, at this time, a child is not able to spend physical time with a parent in terms of a court order because of parental concern or self-isolation / ill-health issues, the guidance expects alternative arrangements to be put in place so that regular contact is maintained. Suggestions made are contact by Facetime, WhatsApp, Skype or Zoom, and – if those are not possible – telephone.

How far does the Scottish guidance go?

The Scottish guidance not only covers court orders but also the more informal arrangements for residence and contact previously reached by agreement. Again, communication, co-operation and sensible, practical arrangements are strongly encouraged.

Ultimately, at this time, a common sense “mini-risk assessment” may be useful for all involved. Would the arrangements adversely affect the child’s health or materially increase the risk of infection? Are there any vulnerable people in either household? Not all questions will necessarily have easy answers during these very difficult times. BLM in Scotland welcomes the Lord President’s guidance in providing a degree of clarity.

As ever, BLM UK-wide is willing and able to offer advice, guidance and representation in all matters of family and child law.

If you wish to discuss any of the matters raised in this blog, please contact  nicola.buchanan@blmlaw.com.