CORONAVIRUS –
LEGAL ADVICE FOR PARENTS ABOUT ARRANGEMENTS FOR CHILDREN
From: The MFY Partnership, Solicitors, Airdrie
In this time of Coronavirus, we are finding most of our enquiries are coming from parents about arrangements for their children. Most parents who are contacting us for advice just now either have a court order regulating these arrangements or a formal, written agreement with the other parent. Enquiries are broadly falling into 3 categories:
1. Parents who have agreed, temporarily, to change an existing order or arrangement for their children and want us to record this for them in a written agreement to be signed by both parents (electronically).
2. Parents who have previously been in dispute but are telling us about improvements in relations brought about by the Stay At Home Rules – and they want us to record these changes. For example, a mother who suddenly finds herself stuck at home 24/7 with children can be very glad of an offer of help from the children’s father – an opportunity to have the children spend some time at the dad’s home to give the mum and the children a break from each other. That has lead us to advise our clients to think about asking the other parent if they need help and, if so, how that help might be given.
Of course, the position is different is one parent is harassing or intimidating the other. That is an accusation we are hearing, particularly from mothers of younger children or those who have been victims of domestic abuse from the other parent previously. However, in other families, fathers are telling us that such accusations are falsely being made against them to stop them communicating with their children. We are advising clients to try and keep communications to email and text messages which can be evidenced, and we are advising all our clients to remain polite and respectful. People are isolated and frightened by this virus and sometimes that is the explanation for behaviour that seems out of character or unreasonable.
3. Parents who are not able to reach agreement with the other parent. These are the majority of our enquiries. There are many reasons for this, but if relations between parents were poor prior to Covid19 (and that tends to be the position in cases where lawyers or the courts are involved) the concern is that parents’ behaviour and the decisions they are making about contact might not be motivated by what is best for the children but rather by negative feelings which one or both parents have towards each other. That conflict between parents is not good for the emotional wellbeing and mental health of their children.
We are giving these parents legal advice based on the following:
(A) THE LAW IN SCOTLAND
The Children (Scotland) Act 1995 which says:
A parent has in relation to his/her child the responsibility to
(a) Safeguard and promote the child’s health, development and welfare …
(b) If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
But only insofar as compliance with these things is practicable and in the best interests of the child.
(B) GUIDANCE FROM THE ENGLISH FAMILY COURT
There is no specific guidance at present from the Scottish Government – we requested guidance from our Sheriff Principal on Monday of this week and await a response. At present we are recommending to our clients the guidance from the President of the Family Division and Head of Family Justice in the English Family Court published on 24th March and, yesterday the Glasgow Bar Association endorsed that. In our experience, this guidance echoes what our Sheriffs were deciding in family cases prior to the Stay At Home Rules coming into operation on 23rd March 2020:-
– Child contact arrangements are an exception to the mandatory “stay at home” requirement
– But that doesn’t mean children must be moved between houses – that is a decision for parents to make 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 either household.
– It’s best for parents to communicate with each other about their worries and what they think would be a good practical solution.
– Parents can agree, temporarily, to change an existing order or arrangement – and they should record this in a note, email or text message
– If parents disagree, one can exercise their parental responsibility and make a change to something else they consider to be safe – but if they do that and “after the event” the other parent questions that in the family court, the court is likely to look to see whether each parent acted reasonably and sensibly in light of the official advice and Stay at Home Rules in place at that time, together with any specific evidence relating to the child or the family.
– Where a child cannot spend time with the other parent (for whatever reason) the courts will expect alternative arrangements to be made to establish and maintain regular contact between the other parent and the child – by Facetime, WhatsApp, Skype, Zoom or similar, or by phone.
The key message is that, where Conronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child
(C) CONTEMPT OF COURT
A court order (or an agreement) must be complied with unless there are good reasons for departing from it. A parent who wilfully refuses to adhere to the terms of a court order [and in respect of Covid 19, we would add “and who has not acted reasonably and sensibly in light of the official advice and Stay at Home Rules in place at that time, together with any specific evidence relating to the child or the family”] risks a finding of contempt of court in due course if and when the other parent brings the matter before the court.
(D) CHILDREN’S VIEWS
We are advising our clients also to try and reflect on what things are like just now for their children. Children are anxious about Coronavirus – their routine is disrupted, they are not at school and cannot see friends, grandparents. They worry too. Routine as far as possible, and keeping contact with both parents, is reassuring for children. Even if one household is self-isolating, parents who are not with their children can keep a routine of indirect contact – by phone, videocall, playing games online, etc. Parents are finding innovative ways to keep connected to their children. Taking account of the views of your children remains important when, as parents, you are trying to reach a decision about what is best for them. However, we are hearing from clients of difficulties when the parent with whom the child lives is ignoring or not answering phone or video calls from the other parent – making communication with children impossible. Given that the courts have been clear in recent hearings that contact by Facetime, WhatsApp, etc is to continue if a child is being isolated, it is difficult to see how one parent ignoring calls to the child is acting in that child’s best interests. Of course, these calls should be polite and respectful, and the number of calls limited to something reasonable – what is reasonable depends on the family – that might be once a day, it might be whenever the child wants to call, or it might be at the times the other parent usually exercises contact.
There is more information on our website at www.mfylaw.co.uk and we are available to discuss matters with parents, and any other clients, by phone on 01236 607180 or by email at either jackie@mfypartnership.co.uk or andrew@mfypartnership.co.uk
27th March 2020