Thursday, 2 April 2020
The Lord President, who is the most senior judge in Scotland, has issued guidance on compliance of family court orders during the Coronavirus pandemic. The guidance makes it clear that those caring for children act “sensibly, safely, and in line with Scottish Government and UK Government guidance".
The guidance makes the general position clear: it is no longer permitted for a person, including a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
Specific UK Government guidance for families specifies an exception to the general stay at home requirement for separated families. If there is a court order or formal agreement in place, you should try to stick to the arrangement unless you and the other person vary the terms of the order or formal agreement.
If there is an informal arrangement in place, you should discuss this with the other parent or carer and make a sensible assessment of the circumstances, including the child’s health, risk of infection, presence of any other vulnerable individuals in one household or the other.
Communication between all parties is key to reaching a sensible, practical solution.
Where an arrangement is reached which varies the terms of a formal agreement or court order, record it in a note, email or text sent between the parties. When parents or carers agree to vary a formal agreement or court order, parents and carers should also consider alternate arrangements.
When parents or carers acting in agreement or as a result of one parent or carer varying the arrangements, the court will expect contact to take place regularly remotely by Face-time, WhatsApp, Zoom or other video connection, or, if that is not possible, by telephone.
Where agreement to vary arrangements cannot be agreed and one parent or carer on their own vary the arrangements, the court will consider whether the parent or carer who varied the arrangement on their own acted reasonably and sensibly in the circumstances including Government guidance in place at the time, together with specific evidence relating to the child or family.
Information regarding court business can be found on the Scottish Courts and Tribunal Service and a link to the guidance from the Lord President can be found here.
In urgent cases, the court will consider an application to have a child welfare hearing fixed. For child welfare hearings, parties must attend except on cause shown.
COVID-19 will automatically be cause shown and parties will not need to personally attend at this time. The hearing will nevertheless proceed and the court has measures in place to deal with child welfare hearings in the absence of the parties in the action.
