April is stress awareness month and as family lawyers, we regularly assist individuals who are dealing with a wide range of difficult issues, emotional and otherwise, following the breakdown in a relationship. Arrangements for contact between any children of the relationship and the non- resident parent is a matter which frequently causes concern. This has been compounded by the coronavirus pandemic.
The current rules in Scotland allow children who have parents in different households to move between those two households. The Lord President in Scotland has made clear that "for separated families, this means that if there is a court order or formal agreement in place, the arrangements which it sets out should be adhered to, unless you and the other person with parental responsibilities have agreed to alternative arrangements, or you are concerned that compliance with the arrangements would compromise the safety of yourself, your child or your household".
If a change to contact arrangements is agreed, it would be sensible to record this in a note, e-mail or text message.
The Lord President has also set out that "where there is a dispute about acting in accordance with a court order, and one parent unilaterally varies the arrangement to one that they consider to be safe in the circumstances, parents should bear in mind that, if their actions are challenged by the other parent in court, the court will consider whether each parent has acted reasonably, fairly and in line with the Government guidance in place at the time".
It is also suggested that if contact cannot operate then alternative arrangements ought to be made such as the use of Zoom, Facetime or other virtual video connection or telephone.
Where issues in relation to contact arise, family lawyers can assist. There are a number of ways to deal with disputes of this nature away from the court and these are detailed below. Proceeding to court is the last resort.
Negotiation
This can involve joint meetings between parties and their respective solicitors, as well as the exchange of correspondence between the solicitors involved. This is all undertaken with a view to resolving the dispute as efficiently as possible. As with other methods of alternative dispute resolution, negotiation allows parties to maintain an element of control over the separation process, rather than leaving this to a judge who does not know the parties, nor indeed the children of the relationship.
Mediation
Clients are often referred to mediation as part of the separation process. A mediation can be carried out by an accredited lawyer mediator or a non-lawyer mediator. This process is an effective way of resolving disputes, particularly in relation to children. If communication with an ex-partner has deteriorated, mediation provides a 'safe' forum in which concerns can be raised in the presence of the neutral third party mediator. Discussions are open and respectful, and each party gets the chance to express their view. The mediator will not solve the dispute but help to encourage dialogue, understanding and ultimately agreement without going to court.
There will be an initial intake meeting when each party can discuss with the mediator their concerns as well as their expectations of the mediation process. There will then be a series of joint mediation sessions. At the end of the process, a summary of what has been agreed is prepared and this can be drawn up into a formal written agreement by the parties' own solicitors. Any discussions that take place at mediation are confidential and cannot be referred to in court which gives parties the freedom to explore different options.
Mediations can take place virtually.
Collaborative process
The Collaborative process can also be used to resolve issues arising from the breakdown in a relationship, such as disputes in relation to contact. Trained Collaborative lawyers will work with their clients in this innovative way to resolve matters. The distinctive feature of this process is that both the clients and their solicitors sign up to an agreement at the outset in which they undertake not to go to court. All discussions take place with both clients and solicitors present and there is a commitment to being open, honest and making full disclosure. Only those solicitors who are Collaboratively trained can participate in this process. Clients can also benefit from input from trained financial advisors and trained counsellors.
This approach puts the clients right at the heart of the process and enables them to come up with creative ways to resolve their differences. It encourages those involved in the process to focus on their mutual interests and create a solution which is right for them and their family, which is particularly important where there are issues to resolve in relation to the care arrangements for any children of the relationship.
Collaborative meetings can also take place virtually.
Arbitration
Arbitration is another method by which parties can resolve disputes that arise when a relationship breaks down. Parties can appoint a family law arbitrator (essentially a private judge) who will resolve their dispute. They can arrange a mutually convenient time and place for arbitration to take place. The process is also confidential and is generally quicker than the court process. The decision which is made by the arbitrator is legally binding on the parties. This process can also be dealt with virtually.
The family law team at Brodies is able to provide expert advice on all aspects of separation and divorce. We have a number of accredited family law mediators and Collaboratively trained solicitors who can assist you as well as an arbitrator.
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