During this difficult and troubling period, many people may find themselves in a position where they need to consider the possibility of raising Court proceedings. For others who may have previously been involved in Court proceedings may be unsure about what will happen with their case, given the recent developments.
What happens about court orders that were granted regulating the arrangements for the care of children?
The position now is that only urgent business will be considered and dealt with by the Court. No ‘normal’ family court hearings will take place.
In relation to family actions, there are a limited number of circumstances in which hearings may be fixed. Generally, these circumstances will include some form of extreme or urgent circumstance which means that matters must be dealt with. This means that the normal types of hearings that would take place in relation to Family Court proceedings are not presently operating. Urgent business probably includes child protection matters, interdicts against molestation or domestic abuse and urgent residence applications.
No new court proceedings can be commenced unless the court is satisfied that the proceedings are urgent. So, for example, if there is a time limit that must be complied with in relation to your case then it is possible to lodge documents electronically to preserve any claim meantime. This is very relevant for cohabitees who require to raise and serve court proceedings for financial claims within one year of the date upon which they ceased to cohabit.
Another issue which has arisen is in relation to compliance with Court Orders regulating matters such as parental rights and responsibilities, and residence and contact during the coronavirus crisis. Scotland’s most senior judge has issued a guidance note dealing with this which makes it clear that parental rights and responsibilities ultimately rest with a child’s parents or carers and not with the Courts. During these unprecedented times, the expectation is that all those involved in caring for children will act sensibly, safely and in line with any Government guidance. It is clear from the Government guidance that one exception to the stay at home requirement is where parents are both involved in caring for children. Any arrangement or Court Order should be adhered to so far as that is possible. Each parent should assess the child’s circumstances. This will include an assessment of the child’s health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
The note encourages meaningful and effective communication between parents to address and resolve any difficulties that arise. It also encourages the use of indirect means of contact where it is not practicable or safe for direct contact to take place e.g. FaceTime, WhatsApp, Skype and Zoom. Telephone contact should also be allowed and encouraged. The hope and expectation is that sensible and practical solutions will be achieved. It is also important to note that in the event there is a disagreement between parents regarding the operation or otherwise of contact or a shared care arrangement during the coronavirus outbreak, following on resumption of business as normal, the Court may be asked to look at the way in which matters have been managed during the coronavirus outbreak by the aggrieved parent.
Notwithstanding that the Family Court is not operating as one would normally expect, family lawyers continue to work offering advice, participating in negotiations and discussions in an effort to resolve and address the issues which are ongoing for clients.
If you require assistance or help in relation to a family issue or dispute, then please don’t hesitate to contact members of our family team.