Written by Rachael Noble

Senior Solicitor at Brodies

Rachel has experienced wide range of family law issues and runs her own caseload. She became a fully qualified Solicitor in April 2015.

Can a non-resident parent continue to exercise contact with his or her children?

This is understandably a huge concern for parents and carers at what is already a difficult time. The guidance issued by the UK Government on 23rd March 2020 makes clear that it is no longer permitted for a person, including a child, to be out of their home other than to shop for basic necessities such as food or medicine, for one form of exercise a day (alone or with members of their household), for any medical need, to provide care or help to a vulnerable person or in order to travel to and from work- but only where this cannot be done from home.

There is, however, an exception to this in that the guidance explains that “if you and your partner live in separate homes but take turns to look after your children, you can continue to do this”.  This means that contact can continue to take place, although it is not the case that children MUST be moved between homes.

The Lord President in Scotland has issued further guidance in relation to this issue ( similar to that issued by President of the Family Division and Head of Family Justice in England and Wales)  making clear that there is an expectation that those caring for children should act sensibly, safely, and in line with Scottish Government and UK Government guidance. Parental rights and responsibilities continue to lie with parents or carers and not with the court.

He indicates that if a court order is in place or parties have entered into a formal agreement regulating contact, then these arrangements should be adhered to as far as possible, unless there is agreement between the two parents or carer that this should be varied.  If there is an informal arrangement with the other parent or carer, there should be a discussion as to how best to approach the situation and a decision can be made as to whether a child is to move between homes after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

It may be for instance, that if someone in one household has become unwell, parents or carers will agree that the most sensible approach is to suspend the child moving from one household to the other until everyone has self-isolated in line with the government guidance.

The Lord President suggests that if there is an agreement to vary temporarily the arrangements set out within a court order or agreement, then it would sensible to record this in a note, e-mail or text message.

Matters will become more difficult where parents do not agree to vary the arrangements set out in a court order or agreement. If one parent is sufficiently concerned that complying with the court order or terms of the agreement would be against current government advice, then the Lord President makes clear that that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. He notes however that “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 light of the government guidance in place at that time, together with any specific evidence relating to the child or family.”

The Lord President indicates where face to face contact does not take place, there is an expectation by the court that the non-resident parent will continue to have contact with the child by way of Facetime, Skype, Zoom or equivalent.

The courts in Scotland are, at present, only dealing with urgent matters. The Lord President makes clear that if there is an urgent case, the court will consider an application for a hearing to be fixed but will have to be satisfied that it is essential. If there is a disagreement about the operation of contact there is therefore no guarantee that a hearing will be convened to determine this.    If a hearing is to take place parties will not require to be present and the matter may be dealt with by way of written submissions or appearance by video-link. It is therefore more important than ever that parents deal with matters cooperatively and family lawyers can assist that dialogue through many channels.

What about the arrangements for spousal maintenance?

Many people will have a concern about finances during this uncertain period. Husbands, wives and civil partners, whether separated or living together, continue to have a duty to support one another financially. When separated, their obligation is to provide such support as is reasonable in the circumstances with regard to their respective needs, resources and earning capacities.

If one party’s income has been unexpectedly reduced and that individual is obliged to pay aliment to a separated   partner by court order, or by formal or informal agreement, then a variation of the sum payable may be required. It may be that a spouse of civil partner will require financial support from their former partner for the first time. In either of these cases, advice should be obtained from a specialist family lawyer.

As courts are now only dealing with urgent matters, only in rare cases would an application for immediate financial support be regarded as an emergency. It is therefore important that the focus is upon trying to resolve matters away from the courts.

What About Payment Of Child Maintenance?

Many employees have been put on furlough leave or have been made redundant and both paying and receiving parents will be wondering what this means for payments of child maintenance or child aliment.

If child maintenance is calculated through the Child Maintenance Service (CMS) and the income of the paying parent has changed by 25% as a result of Covid-19, the CMS will adjust any calculation if that change is reported to them.  If that is the case or if one party considers that child maintenance should no longer be paid, contact should be made with the Child Maintenance Service.

If the amount of child maintenance to be paid is dealt with within a Minute of Agreement or a court order, the terms of the agreement and order will require to be considered in determining what, if any, changes need to be made to the sum payable.  If the payment is to be varied, then it would be beneficial to put in place an agreement regulating this which can be revisited should there be a change in circumstances. Individuals should obtain specialist legal advice in relation to this.

It is hoped that parents can work together constructively in relation to this matter and dialogue at an early stage is encouraged.

What If I Am Concerned For My Safety During This Period Of Lockdown?

For some individuals, the impact of the current government guidance will increase the risk of domestic abuse. For those who are subjected to such behaviour, Regulation 8(5)(m) of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 makes clear that an exception to the rule requiring people to stay at home is where an individual is avoiding injury, illness or escaping a risk of harm.

Although the courts in Scotland are now only dealing with urgent matters this will include orders necessary to protect victims of domestic abuse. These can include exclusion orders suspending the right of their spouse, civil partner or (in certain circumstances) cohabitant from the family home, interdicts and non-harassment orders (with powers of arrest). You should speak to a specialist family lawyer in relation to these matters and ensure that you obtain the necessary help should you experience domestic abuse.

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