Contact arrangements at Christmas

Christmas is traditionally seen as a time for family to get together and celebrate.  Christmas 2020 is, however, going to be different for many reasons.  Added to the restrictions which are in place as a result of the Covid-19 pandemic, Christmas is often a difficult time for many families which involve separated parents.  Putting the two of these issues together may make you think Christmas arrangements would be even harder this year for those who have children with an ex-partner.

At the start of the pandemic much was unclear in relation to how contact arrangements should work.  Clarification has, however, now been given in guidance issued by the Lord President (the highest Judge in Scotland).  That guidance was updated on 18th November after the Scottish Government’s introduction of local protection levels across Scotland.

Whilst the guidance makes clear that the circumstances of each child, and each family, are different, it states that those caring for children are expected to continue to act “sensibly, fairly, and in line with the most recent Scottish Government guidance”.

Scottish Government guidance makes clear (as at the time of writing this piece) that there is an exemption to any travel restrictions which are in place where the travel is for the purposes of “shared parenting”.  Shared parenting is taken to include parents exercising contact with their children.  This means that where parents are separated children can move between their parents' households, even if their parents live in different local protection levels.

The presumption is that if there is a Court order or formal agreement in relation to contact arrangements in place, that contact should continue to take place as usual. It is, however, acknowledged that parents may agree between themselves that contact should be varied if the parents feel this is in the children’s best interests.  The Lord President suggests it would be a good idea for parents to record any agreement to vary arrangements.

The Lord President acknowledges that many will have heightened concerns about contact taking place, for example if one of the parents is in a particularly vulnerable category, or if the parents live long distances away from each other.  In those circumstances, it is for the parent who thinks contact should not take place to consider whether there is an alternative way in which contact could take place.

If one parent feels that contact should not take place they require to 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 and sensibly in all of the circumstances of the case and the Government guidance in place at the time”.

If contact cannot take place in person then there is an expectation that other methods of contact such as video calls or telephone calls should be put in place wherever possible.

As always, the overarching principle to be applied is that the child’s best interests are paramount.  It is for the adults to consider this and act in a way they feel is best for their child.  I would suggest that that is especially so at such a special time of year for children.

As always, getting good advice is essential.  The Drummond Miller family law team is extremely experienced in dealing with all aspects of family law including separation, divorce, and child-related matters. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Dalkeith, Musselburgh or Bathgate.