There is definitely a sense of normality, or perhaps a "new normal", creeping into the daily lives of many people in Scotland. In recent weeks, most children have been able to return to outdoor play areas and amenities, spend time with extended family and friends, and hug their grandparents for the first time in months. For separated families, particularly those for whom the coronavirus restrictions presented practical and logistical obstacles, the continued move out of lockdown should make it easier for contact to resume and to operate much as before.

To assist with that transition Scotland's most senior judge, the Lord President, has issued some further guidance for separated parents whose children are the subject of court orders regulating residence and contact. As with the Lord President's earlier guidance, issued at the beginning of lockdown, parents are urged to act fairly and sensibly and to consider alternative arrangements where necessary to enable contact to take place safely. The guidance recognises that for some families there will be ongoing health concerns, and there may be other issues which give rise to difficulties or disputes over care arrangements. However, as far as possible, parents should adhere to court orders or formal agreements for children. With all of that in mind, here are our top tips for staying on the right track…..

Common sense is the order of the day – separated parents should endeavour to co-operate, communicate and act reasonably for the benefit of their children. Any agreed variations to contact arrangements should be recorded, such as in an exchange of text messages or emails. Wherever possible there should be an ongoing discussion about any additional or alternative arrangements that may be necessary in line with government guidance. Where there is a dispute between parents which cannot be resolved and ends up in court, the sheriff or judge will look at the parties' conduct and whether they have acted reasonably and appropriately in the circumstances.

Travelling and moving between households – children of separated parents were already exempt from restrictions on moving between households, but as we are no longer "locked down" children are not required to stay at home and the five mile restriction for travelling and visiting has been removed. Arrangements which are dependent on the assistance of grandparents or others to supervise or support contact may now be able to resume. Where parents live further apart, or if one parent is abroad, there may be valid concerns about travel, especially if there are higher infection rates or additional restrictions in a particular country or region. Again, common sense should prevail. Alternative arrangements can and should be made to enable contact to take place safely. The court is unlikely to be critical if genuine concerns have been raised and viable alternatives offered.

Shielding households and ongoing health concerns – some parents may still be concerned about health risks, particularly if someone in either household is in the shielding category or develops symptoms and requires to self-isolate. It is entirely reasonable to be cautious in those circumstances. The guidance suggests that an alternative venue for contact could be considered to protect the shielding person, or to protect others from coming into contact with someone who is self-isolating. Contact may have to be suspended temporarily or arrangements varied if people within either household become ill or have symptoms.

Alternatives to direct contact – in situations where children are unable to have direct contact with one parent, for example due to health or other practical reasons, every effort should be made to facilitate indirect contact. There are some situations where indirect contact may not be appropriate, but lockdown has shown us just how well social contact can be maintained over platforms like Zoom, Facetime and WhatsApp. Children have been learning, playing, dancing, baking, and doing many other things virtually, demonstrating that there are ways to make indirect contact a meaningful alternative, at least in the short term.

If court action is necessary – the courts are now open for routine business, including accepting new cases and dealing with issues relating to existing contact orders. Cases involving children are being prioritised, actions can be raised and served electronically, and hearings are now taking place remotely using telephone and video conferencing. There are some different and additional procedures in place so it is important to get the right advice about what steps you may need to take if you are considering court action.

If you require any advice in relation to the operation of contact arrangements for children or indeed any aspect of your parental rights and responsibilities, our team is available across Scotland to provide expert advice and guidance.        


Zoe Wray