Clarity from Lord President on contact and residence cases during COVID19

Shared Parenting Scotland wrote to Lord Carloway, Scotland’s senior judge, earlier this month raising concerns about disruption of contact time between children and both parents during the present health emergency.

Initially court business was suspended and child welfare hearings, for example, were automatically sisted (placed in suspended animation) until further notice. Lord Carloway’s guidance of March 27th indicated that urgent matters could be brought to court and efforts were being made to initiate remote hearings by telephone or other electronic means.

His guidance made clear that where possible contact orders should continue. Travel to comply with court orders is explicitly allowed in UK and Scottish Government legislation and covered in Police Scotland instructions to officers.

However Shared Parenting Scotland has received many enquiries from parents who don’t live together saying contact has been closed down by the other parent without agreement or even discussion and without offering alternative communication with their children by some sort of face time.

Lord Carloway’s reply is very clear.

”Urgent and necessary civil business continues to be dealt with by the courts. This includes all urgent applications in relation to parental responsibilities and rights, including contact or residence, and extends to non-compliance with, or variation of, a contact order. This presupposes that a party can establish that the matter is indeed urgent and necessary.”

Feedback from solicitors who contact Shared Parenting Scotland confirms the importance of being able to set out clearly in the initial approach to the court the facts of the case and how they constitute a matter of urgency. We have heard some examples of apparent inconsistency between courts which is clearly not satisfactory.

Lord Carloway continues, ”All judges and court staff are working as flexibly as possible to facilitate the hearing of these applications either in court or remotely. A number of urgent and necessary family order non-compliance applications have already been dealt with online by way of email submissions, video or telephone conference. The published guidance on compliance with family court orders encourages parties to set up alternative arrangements in order to maintain regular contact. This includes ‘virtual’ contact using a video conferencing application such as FaceTime.”

Finally, SPS pointed out the court rules around ‘recalling’ a sisted case require one of the parties to lodge a motion with the court and serve it on the other party. There are substantial fees involved. We proposed that consideration could be given to invoking a special procedure that would waive fees. This would be particularly important for Party Litigants representing themselves.