Residential property
23 Apr 2020 News

Co-parenting during Covid-19

The guidance published by the UK Government on 23 March 2020 confirmed that "where parents do not live in the same household, children under 18 can be moved between their parents’ homes". The question for separated parents is whether they should be moved between two homes.The answer is: it depends.

These are scary and unsettling times for children and maintaining a sense of routine in which they see both parents will help them feel safe and secure. That said, it is understandable that there may be some concern as to whether the normal routine can safely continue. Helpfully the Lord President of the Court of Session has published general advice for parents and carers whose children are the subject of orders made by a court which will also be of assistance to those operating more informal arrangements. The key points can be summarised as follows:

  1. Parental responsibility continues to rest with the child’s parents or carers and not with the court.
  2. During these unprecedented times, it is expected that all those caring for children will act sensibly, safely, and in line with Scottish Government and UK Government guidance.
  3. The guidance makes the general position clear: it is no longer permitted for a person, including a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
  4. The UK government’s guidance should not be read as meaning children must be moved between homes. If there is a court order or formal agreement in place, you should try to stick to the arrangements it sets out unless you and the other person with parental responsibilities and rights agree to vary these. If you have a more informal arrangement with the other parent or carer, you should discuss how best to approach the situation and make a decision on whether a child is to move between homes 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 one household or the other.
  5. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if a parent thinks it is safe for contact to take place, the other parent or carer may, entirely reasonably, be concerned about this. At such times, communication between all parties is key to managing the situation and agreeing a sensible, practical solution.
  6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a court order relating to parental responsibilities and rights should be temporarily varied, they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
  7. Where parents do not agree to vary the arrangements set out in a court order, but one parent is sufficiently concerned that complying with the court order would be against current Government advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the Government guidance in place at that time, together with any specific evidence relating to the child or family.
  8. Where, either as a result of agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the court order, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent safely, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
  9. No non-urgent business is currently being dealt with in court. For the avoidance of doubt, non-urgent child welfare hearings are not proceeding in court. In urgent cases, the court will consider an application for one to be fixed, but will have to be satisfied that it is essential.

Reduced contact will feel like a major setback for some parents, particularly those who have been engaged in long periods of negotiation or litigation. It is vitally important that children are shielded from any overt conflict between parents and carers who have a different opinion about what is best. Failing to do so will only serve to heighten their anxiety. We have been heartened by the calm, open and honest approach taken in most of our cases and would strongly encourage all separated parents and carers to think carefully about what is in their child’s best interests before imposing any changes that cannot be agreed. As ever, communication is key.

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