Family law cases to varying degrees will often involve the court system. A crucial question is, therefore, what impact Covid-19 is having on the ability of courts to deal with new and existing family law cases?
Whilst the court service as a whole continues to operate, many smaller Sheriff Courts across Scotland have now closed with their business being consolidated in larger courts. Not only this, the courts that are open are only dealing with “emergency matters” including child abduction, child protection and emergency interdicts and in doing so, adjourning all other matters. Likewise, the Court of Session, Scotland’s highest civil court, is dealing largely with emergency family matters only. As such many regular family cases are simply “on pause” for the foreseeable future. As time goes on, this position might well become untenable and pressure is already mounting on the courts to deal with matters in a more flexible manner, with some hearings being dealt with by telephone conferencing with the judge or by way of written submissions only.
Clearly the measures introduced by the court service will have knock-on effects on non-contentious cases too. In a simplified divorce for example, where parties have agreed a settlement and simply require the court to “rubber stamp” their divorce, these applications will not be processed at present as they are not classed as emergency business and, accordingly, the couple will remain married.
In some families, children will move between their mother and father in different households on a regular basis which has posed the question as to whether this is allowed in the present state of lockdown. The government helpfully advised it is allowed which has been further endorsed by guidance issued by Scotland’s senior judge, the Lord President. The Lord President, however, went one step further and advised in the event of one parent thinking that contact with the other would be against government guidance generally, for example if the child or household are displaying symptoms of the virus, then the regular contact arrangement may be varied unilaterally. This could see a parent not seeing their child for a period of 14 days. Clearly at this time there is more reliance on the goodwill of both parents and there is an expectation that both parents will act sensibly, for example utilising regular video calls in such circumstances.
Notwithstanding these challenging times, disputes will continue to arise. Accordingly, clients will still require a forum for decisions to be made on matters which they simply cannot agree. It may be the case that if this cannot be provided timeously by the courts, there is an opportunity for alternative forms of dispute resolution, such as mediation, arbitration and collaborative law to come to the fore. It may be that one of the lasting changes to come out of the current pandemic is that more use is made of these alternative forums which if managed proactively and with commitment to finding a resolution from all parties can be a very constructive way forward.