Lord Carloway’s guidance in respect of child contact during Covid-19

Here at Walker Laird we understand that sharing the care of a child in the current circumstances of Covid-19 can be difficult and stressful. Every parent or carer of a child is required to put the health and safety of the child at the forefront of any decision regarding the care of the child. The Lord President, Lord Carloway has published a number of points that parents and carers whose children are subject to court orders should consider when making decisions about the care of a child. These include:

1. Parental responsibility for a child who is the subject of any order relating to parental responsibilities and rights made by a Scottish court continues to rest with the child’s parents or carers and not with the court.
2. It is expected that all those caring for children will act sensibly, safely, and in line with Scottish government and UK government guidance.
3. Specific UK government guidance for families establishes an exception to the general stay at home requirement for separated families. It 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 does not mean that children must be moved between homes. If there is a court order or formal agreement in place, you should try to stick to the arrangements it sets out unless you and the other person with parental responsibilities and rights agree to vary these. If you have a more informal arrangement with the other parent or carer, you should discuss how best to approach the situation and make a decision on 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.
4. Even if a parent thinks it is safe for contact to take place, the other parent or carer may, entirely reasonably, be concerned about this. At such times, communication between all parties is key to managing the situation and agreeing a sensible, practical solution.
5. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a court order relating to parental responsibilities and rights should be temporarily varied, they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
6. Where parents do not agree to vary the arrangements set out in a court order, but one parent is sufficiently concerned that complying with the court order would be against current government advice, 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 light of the government guidance in place at that time, together with any specific evidence relating to the child or family.
7. Where, either as a result of agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the court order, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent safely, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
8. Information regarding court hearings and urgent business can be found on the Scottish Courts and Tribunal Service website. No non-urgent business is currently being dealt with in court. For the avoidance of doubt, non-urgent child welfare hearings are not proceeding in court. In urgent cases, the court will consider an application for one to be fixed, but will have to be satisfied that it is essential. For child welfare hearings that do proceed, the normal rule is that parties must attend child welfare hearings except on cause shown – the Coronavirus Crisis will automatically be accepted as appropriate cause shown and parties are not required to attend child welfare hearings in person at this time.

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If any parent or carer of a child has any questions at this difficult time regarding the care of a child, then please do not hesitate to contact our David Forbes on 0141 887 5271 or alternatively please complete our online enquiry form.