Dealing with child contact arrangements during the pandemic - the legal position
The coronavirus pandemic has had an enormous impact on family dynamics. It has introduced uncertainty and strain where previously none may have existed. It has amplified disagreements and tensions in families who were already having difficulty navigating post-separation arrangements.
The frequently changing landscape of Government regulations and guidelines has left many parents in a situation of uncertainty. Amid a time of such flux, families have often struggled to interpret and apply the evolving rules to their specific circumstances. For example, particular anxieties exist for separated parents living in different local authority tier areas, parents or children with health conditions and those who are classed as key workers.
Since the initial stages of lockdown clarity has emerged gradually for separated parents in the form of Coronavirus regulations. At an early stage the Lord President, the most senior judge in Scotland, issued guidance relating to care arrangements for children. Parents were encouraged to exercise judgment and discretion in the best interests of their children and above all, to communicate with each other. Subsequent guidance was issued on complying with court orders relating to children.
Despite the coronavirus restrictions on travel, children have always been permitted to move between the separate households occupied by their parents. This applies regardless of the tier area each parent may live in.
How do the rules affect my family?
The evolving iterations of the rules and the divergence between Scotland and other parts of the UK have left many parents feeling confused and unclear as to what may be permitted in their particular circumstances. Specific exceptions apply to the general rules prohibiting travel. Individuals are allowed to travel between different tiers of restriction in order to “participate in or facilitate shared parenting or between two parts of an extended household”.
The rules permit children to travel between the homes of their separated parents. This applies whether or not there is a written agreement or court Order in place. Court Orders remain binding on parents and the pandemic does not justify these being disregarded. Where it is safe to do so contact arrangements should continue. If there is a dispute about the safety of complying with an Order the court will consider whether each parent has acted reasonably and sensibly in all of the circumstances and according to the guidance in place at the time. Court hearings are continuing to take place and urgent disputes can be resolved by way of court action if necessary.
Sadly for some parents the coronavirus pandemic has resulted in a reduction or even total cessation of contact with their children. In some cases the pandemic may have been used by some estranged parents as a means of stopping contact with the other parent. For many resident parents there has been genuine fear and anxiety about sending their child off for contact.
The Lord President’s guidance emphasised the need for good communication. However, amid a time of trauma and worry, frayed and fractured relationships may not have allowed the communication these times have demanded. Parents who had separated prior to the pandemic may have seen their fragile co-parenting relationship significantly impacted by it. For many people the consequences have been economic uncertainty, health anxiety and mental health issues. Some parents have simply been left ill-equipped to cope with the impact of the pandemic on their family circumstances. This has resulted in the amplification of tension and disagreements which may have otherwise been weathered in less fraught times.
Parents separating during this pandemic have faced particular challenges. Trauma has been intensified by the practical difficulties and limitations unique to these times. Families may have been affected by financial strains, and the difficulty of enforced close proximity caused by lockdown restrictions. In many cases the loss of wider support networks and social contact have taken a significant toll and resulted in relationship breakdowns. Family separation is never easy, but during this year the impact on parents and children has been amplified.
Helping children through the pandemic
Supporting children during a separation is always challenging and requires parents to differentiate between their own needs and those of their children. At a time of such acute stress it may be very difficult for a separating couple to look beyond recriminations and hostility to the particular needs of the child in the middle. This is often true in ordinary times; however the pandemic has brought this into sharper focus. Most children are struggling with the losses and changes brought about by the pandemic and separation or divorce at this time will be an acutely difficult prospect.
At a destabilising time where children may have lost their social and extracurricular activities, maintaining routine is particularly important. Established contact arrangements, whether in the form of agreement or court order should be maintained wherever possible. Court Orders are legally binding and unless both parents agree to vary the terms of any Order it should be implemented. In cases where a household member is self-isolating or has tested positive then sensible adjustments will have to be made on a temporary basis.
In circumstances where contact requires lengthy travel, or one parent has health concerns then communication will be vital in navigating potential difficulties. It may be possible for parents to reach an understanding and adjust their arrangements in seeking to ensure the welfare and best interests of their child are prioritised. Practical adjustments can be made and bonds maintained through digital means in the short term.
Good communication and empathy can prevent misunderstanding and escalation of difficulties. Where disagreements exist the guiding principle will always be the child’s welfare. In cases where direct communication is challenging then mediation can be a helpful forum. Mediation services have adapted and are accessible online and via videolink. In most cases, obtaining advice and support from a specialist family lawyer will help achieve a better level of communication and help you better navigate this temporary crisis.
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Our family law team is made up of experienced family law solicitors around the country. Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field.
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