Updated Guidance has been published (18 November 2020) in the name of the Lord President in Scotland in relation to compliance with court orders for residence and contact with children during the Coronavirus Crisis. Although the guidance is about compliance with Court Orders this may also be of interest to parents who have separated and who have Agreements about sharing the care of their children or parents who may be considering the need for a Court Order. Here are some questions that you may have been asking yourself if you are in this situation:

Why has the guidance been updated at this time?

The Lord President issued guidance on compliance with court orders for residence and contact in March 2020 and again in July 2020. This latest guidance, however, recognises the latest Government guidancenew local protection levels and travel restrictions which apply in some parts of Scotland. It clarifies that even if there are travel restrictions in place which would otherwise prevent a child moving between the homes of his or her parents, that such travel between households is exempt. Travel for shared parenting is exempt regardless of the protection area.

Does that mean I must send my children for contact with the other parent?

The short answer is no but parents are expected to continue to behave reasonably and sensibly and there may be consequences if they are shown to have failed to comply with a court order without having acted reasonably and sensibly. The guidance recognises that breaching local travel restrictions may not be the only source of concern for parents during the Coronavirus Pandemic. There could also be concerns about children moving between households in which a person is shielding or self-isolating. There are a variety of reasons that one parent may have for considering that it is not safe for contact to take place in line with a court order. If a parent has concerns about adhering to a court order they are advised to communicate with the other parent and try to reach agreement about any variation to the arrangements.

Do we need to get a new order from the Court if we are agreeing to change the arrangements?

Again, the answer is no. The guidance reads that if alternative arrangements have been agreed it would be sensible to document them in some way, perhaps in a note, text message or email. A formal Agreement may be advisable in these circumstances.

What might happen if I refuse to allow contact to go ahead when there is a Court Order in place?

Whereas at the start of the pandemic and during the early stages of lockdown the courts were not dealing with anything other than urgent business, the courts in Scotland are now dealing with urgent and non-urgent business. The other parent could complain about the non-compliance with the court order and both parties could be brought before the court (virtually) to determine what should happen. If this were to happen it would be for the Court to consider whether each parent has acted reasonably and sensibly in all of the circumstances of the case and in light of the Government guidance prevailing at that time. In extreme cases the Court could find that there has been Contempt of Court which is an offence punishable by a fine or imprisonment. The Court may even be asked to reverse the residence of the child. If this was opposed such an order would only be made if it was shown to be necessary and in the best interests of the child.

If you are in a dilemma about sending your child for contact or agreeing to vary the childcare arrangements, please get in touch for advice that is tailored to your particular circumstances and the prevailing Court and Government guidance.


Lydia McLachlan

Senior Associate