Couples who are going through a separation now find that apart from urgent civil business, including:
- child protection orders;
- interim interdicts; and
- urgent interim residence or contact applications,
all other court business, depending on the sheriffdom, is being continued for a significant period or sisted.
Clients now find that access to legal advice is restricted, being given remotely by online, email, telephone, Skype, Zoom etc.
What advice can we, as perceived experts, give to our clients at this challenging time?
Acknowledge their own distress
This is a challenging time for everyone, particularly so those with anxiety and stress which, regrettably, are all too common in couples who separate. There are understandably concerns about health, children's safety, their wider loved ones and finance. Encourage them to acknowledge their distress, accept their limitations, focus on what they can do as opposed to what they are not able to do. It is important that they look after their health. The NHS in Scotland has issued helpful guidance on looking after your mental wellbeing. It is important to recognise that this situation is temporary.
Limit exposure to social media
It is widely recognised in psychiatry and clinical psychology that our thoughts directly influence our mood, behaviour and physiology. You only need to imagine having head lice on reading your child’s school letter to start feeling itchy, uncomfortable and start scratching your head.
Challenging thoughts that cause poor mental health is the basis for CBT (cognitive behaviour therapy), the most effective treatment of mental health problems. It is important therefore to have the right information about COVID-19. News from unreliable sources can make people feel more anxious and upset. Reliable sources like the Scottish Government, World Health Organisation and NHS Scotland will provide accurate, up-to-date information.
Having a routine and structure helps children feels secure and safe in uncertain times. Ensure children have age appropriate information that can challenge their anxiety-provoking thoughts. Such information can be found at www.nhsggc.org.uk/kids. For support with children with special needs or autism, search COVID-19 on www.kidshealth.org
Structure their day
If working from home, clients should try to keep to their normal working hours, get ready for the working day, and take regular breaks. Absence of routine, and enforced periods of time together, are quite often the most cited reasons for seasonal spikes in separation at Christmas and holiday periods. This however is a counsel of perfection. If they are trying to home school an 11-year-old and a 13-year-old and look after the dog, you have to acknowledge that it is impossible to maintain their normal routine.
If couples are living together but separated, they should have separate rooms in the house, or at least separate space. The Government guidelines permit individuals to exercise once a day and shop (for essentials). This allows separated couples living in the same house some separate space.
Individuals with depression have often isolated themselves from others and withdrawn from life. Due to COVID-19, we have all, to a varying extent, become isolated from others and withdrawn from our usual daily activities. To counter isolation and withdrawal, clinical psychologists suggest the introduction of the psychological intervention, behavioural activation. This strategy entails getting clients more active and involved in life by scheduling activities that have the potential to improve their mood.
Increasing activity gives structure to our day, adds a sense of achievement and pleasure and limits the time spent engaging in the self deprecating and catastrophic thoughts that underpin poor mental health.
Which activities should be scheduled? It is important to focus on valued and meaningful activities in addition to pleasurable activities. When an individual becomes low in mood, there can be few activities that give a sense of pleasure, however our values tend to be more stable and can serve as a guide for behavioural activation. Value categories would include work, self-education/learning, volunteering, intimacy, family, friendship, religion/spirituality, entertainment/recreation, and health/fitness.
There are a number of apps that support behavioural activation, such as Moodivate. These provide an electronic schedule with reminders and a record of the correlation between increased activity and that of mood, concentration, motivation and energy.
Tackling domestic abuse and self isolation
The law relating to domestic abuse still applies. The police and courts in Scotland continue to take a firm approach towards the prevention of domestic abuse. It is a criminal offence to engage in a course of behaviour which is abusive towards a person’s partner or ex-partner – “partner” is widely defined. Domestic abuse covers physical and psychological abuse, and coercive control. If someone is experiencing domestic abuse, they should take legal advice and/or report this to Police Scotland who can take immediate intervention steps to protect an individual and their family. Police Scotland can be contacted on 101 if it is not an emergency, and 999 in the event of an emergency. There are also a number of support organisations including Rape Crisis Scotland (08088 01 03 02), Scottish Women’s Aid/Scottish Domestic Abuse and Forced Marriage (0800 027 1234), and Abused Men in Scotland (0808 800 0024), who can provide support.
If the police are of the view that a criminal offence has been committed, the individual will be removed, appear in court and be subject to a bail condition not to attend the home or be near their former partner/spouse, which would effectively exclude them.
The civil remedies of exclusion orders, matrimonial interdicts, domestic interdicts, non-harassment orders and common law domestic interdicts with powers of arrest can still be obtained.
Guidance notes have been issued by the sheriffs principal. Actions and motions will be accepted by email. If the motion is opposed, the matter can be dealt with by written submissions. It will be allocated to a sheriff who will make appropriate orders as to how matters are to progress. It may well be difficult, if not impossible, to have affidavits prepared. Statements taken by solicitors, albeit remotely, may well be enough. The more information and evidence that is made available to the court, the more likely the order will be granted.
It is essential that individuals ameliorate their behaviour. They should be advised of the consequences of a failure to do so. They should not be engaging in any behaviour which is abusive. The Lord Advocate and the police have reiterated that domestic abusers will continue to be dealt with severely.
Making contact arrangements work
Government guidance issued along with the stay at home rules on 23 March, and since repeated by the Scottish courts, specifically deals with child contact arrangements. It says: “If you and your partner live in separate homes but take turns to look after your children, you can continue to do this.”
This does not mean that children must be moved. The decision to move between homes is for the parents to decide after a sensible assessment of the circumstances, taking account of the child’s health, the risk of infection and the presence of any recognised vulnerable individuals in a household.
The best way is for parents to communicate with one another about their concerns and what they think would be a practical solution. The guidance issued by the courts on both sides of the border advises that where parents form the view that the arrangements in a court order should be temporarily varied, they are free to do so, and that it would be sensible to record such an agreement in a note, email or text message.
Where parents do not agree to vary the arrangements in a court order, but one parent is sufficiently concerned that complying with the court order would be against current Government advice, that parent may exercise their parental responsibility and vary the arrangement to one they consider to be safe. If after the current crisis the actions of a parent acting on their own are questioned by the other parent, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the stay at home rules in place at that time, together with any specific evidence relating to the child or family.
Where either as a result of an agreement or as a result of one parent varying the arrangements, a child is not able to spend time with the other parent as set out in any agreement or court order, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and that parent within the stay at home rules, e.g. remotely – by FaceTime, Whatsapp, Skype, Zoom, other video connection, or failing these, by telephone.
The World Health Organisation and British Psychological Society advise during COVID-19 isolation that it is best to keep children close to their parents and family, if considered safe, and avoid as far as possible separating children and their carers. If a child needs to be separated from the primary carer, ensure that appropriate alternative care is provided. Furthermore, ensure that during periods of separation, regular contact with parents and carers is maintained, such as twice-daily scheduled telephone or video calls or other age-appropriate communication (e.g. social media).
For the full articles see “Mental health and psychosocial considerations during the COVID-19 outbreak”, and “Responding to Coronavirus: Resources and Support”.
Making finances work
Money and finance is a big issue. For the vast majority of people, there is likely to be less income available. Some may suffer a 20% reduction in their income if they are “furloughed”; some individuals will lose their jobs.
For a number of self employed people, there is also financial uncertainty. The measures introduced for the self employed will only be available in June. They will not be available to everyone, particularly those who do not have a full year of accounts. If clients have capital and savings, these could be accessed to fund necessary expenditure.
Some clients may no longer be able to pay financial support for their separated spouse/partner and children. If possible, they should reach a temporary agreement with their former partner to access savings. Once again, they should record this in a note, email or text message sent to each other. If they are unable to reach an agreement, and require to access savings, they should do so sensibly and responsibly and record what they have done in a separate note. There is sufficient flexibility in the 1985 Act, ss 8 and 9 principles, and the special circumstances in s 10(6), to support a requirement to access savings and ensure that the client is not financially penalised later.
Concluding agreements on financial provision
Assets are normally valued at the date of separation. Any order has to be, in terms of s 8(2), justified by the principles set out in s 9 and reasonable having regard to the parties' resources.
The financial climate is uncertain and will remain so for a period of time. There may well be additional arguments to be advanced in terms of s 9 and s 10(6) (special circumstances) which did not exist prior to COVID-19 for assets to be shared unequally.
The financial position (resources) of clients cannot be established at the present time. Until such time as it can be, there is a significant difficulty for clients and legal advisers entering into agreements.
To give some examples:
- If an asset is to be transferred, such as a half share in a family home, it requires, in the absence of an agreement, to be valued at the present time. Its present value is not known. Even if a recent valuation was obtained, it can no longer be relied on.
- In a transfer of a family home with a mortgage, even if the client previously had the consent of the lender to take on the mortgage, that consent may no longer be available.
Entering into agreements at the present time presents significant difficulties for legal advisers and potentially exposes them to claims of negligence and inadequate professional services. Accordingly, the advice that should be provided to clients is that while financial information can be obtained, and negotiations can be progressed, proposals cannot be finalised and agreements cannot be entered into. We cannot give advice to clients where we do not have all the financial information – we cannot advise in a vacuum.
This view is bolstered by the guidance note issued by the Sheriff Principal at Glasgow on 25 March 2020 (all family proofs are to be adjourned, with a proof not being assigned earlier than August; all other family cases in which a proof has not been assigned, are to be sisted). If clients wish to enter into agreements without all the financial information, they should be advised in writing of the risks and consequences of doing so. However, the courts have formed the view that they cannot determine any family cases until the financial position of parties is clarified. Family lawyers should be providing the same advice.
Communication between separated couples should always be civil; however, it is often less than civil. Clients should be advised to be responsible in their communications with their separated spouse/partner (whether verbal, text, email or on social media), and should be counselled that their communications will be revisited after the current crisis has passed.
Government indications are that restrictions are likely to be in place for some time.
The present circumstances are extremely difficult for everyone, including separated couples. It is important to remember that these circumstances, whilst unprecedented, are temporary. The current health crisis will end, at which point family lawyers will be able to progress negotiations for their clients in relation to the welfare of their children and their finances.
Remember the acronym “FACE COVID” by Russ Harris, using the principles of acceptance and commitment therapy:
F = Focus on what is in your control: the here and now and what you do.
A = Acknowledge your thoughts and feelings.
C = Come back into your body, using mindfulness meditation.
E = Engage in what you are doing right now, not yourself in the past or future.
C = Committed action: engage in activities.
O = Opening up: be compassionate to your feeling of distress. Resources on self-compassion can be found here.
V = Values: identify what your values are and let them guide your activities.
I = Identify resources that are helpful for you and your children.
D = Disinfect and distance.
Tom Quail is a partner with Wright, Johnston & Mackenzie LLP
Dr Yvonne McNeill is a private clinical psychologist at The Psychology Rooms