During the current Covid-19 pandemic, separated and divorced parents are being faced with the difficulty of how the arrangements for the children should work, particularly during this unprecedented period of social distancing.
Can children with divorced or separate parents move between homes during lockdown?
On 23rd March 2020, the Government produced initial guidance which, made it clear that it is no longer permitted for a person to be outside their home for any purpose other than essential shopping, daily exercise, a medical need or attending essential work. However, this was subsequently updated to state that an exception to this was where parents do not live together. In these cases, it was permitted that children under the age of 18 could move between their respective parents’ homes in order to ensure that their time with both parents could continue. This was recognised as an exception to the mandatory stay at home requirements.
However, this raised further genuine concerns for some parents. What if the child or another member of one household was unwell and had genuine symptoms? What if a household contains a vulnerable person? Or if a person in one of the households is a key worker and could be exposed to Covid-19. Would a parent be forced to continue contact if they had any of these genuine concerns?
As a result of these genuine concerns, guidance was published on the Courts and Tribunal Judiciary website.
Breaching a child arrangement order due to Covid-19 concerns
As well as the practical concerns above, a number of parents whose children are the subject of a child arrangements order have also been concerned about their ability to meet the terms of the order when they feel that the children are at risk. What was the position if they breached an order as a result of genuine concerns?
The guidance emphasises that parental responsibility for a child still rests with the child’s parents. The situation in which these parents find themselves is unprecedented and although the expectation should be that contact with both parents should continue, the parents with the care should act responsibly and ensure that their child or children are safe. If a parent feels that a child might be at risk if they spend time with or returned to the other parent, they are entitled to exercise that parental responsibility and consider stopping the child from spending time at the other parent’s house.
The decision as to whether the child is to move between parental homes should however be made after careful consideration of the circumstances at the time, including the child’s present health and the risk of infection in the presence of any recognised vulnerable individuals in one household or the other.
What is a real concern, is that a parent who does not want the children to spend time with the other parent, might use Covid-19 as a reason for stopping contact from taking place and might not be able to prioritise their own feelings towards the ex over the needs of the children.
The best interest of the child
As with all cases, the focus should be on what is in the best interest of the child. It is now widely recognised that it is almost always in a child’s best interest to have a relationship with both parents, including the parent that they do not necessarily live with.
The importance of effective co-parenting is generally recognised and what is encouraged now is that families try to amicably find solutions that are in the children’s best interest.
Parents are encouraged to communicate with one another about their worries and what they think would be a good practical and sensible solution in these unprecedented times, taking into account the child’s best interest.
Parents are asked to work together to ensure that the children can maintain a relationship with both of their parents. In certain circumstances, spending time in the presence of another parent might not be in the child’s best interest for example, if one parent is in isolation, but alternative forms of contact can be explored. Parents who feel that direct contact is not appropriate are encouraged to ensure that they make time for the children to spend time with that other parent and see them regularly, even if it is remotely. Indirect contact such as telephone calls, Zoom, WhatsApp, Facetime, and Skype allow the children to spend time with the other parent if direct contact really is not sensible.
Support for parents
Resolution is a community of family justice professionals who work with families and individuals to resolve issues in a constructive way. Their website offers, amongst other advice and help for separating parents, practical tips for making contact work during this time.
Further helpful advice can be found on the Cafcass (Children and Family Court Advisory Support Service) website.
What is clear is that working together as parents during this difficult time is really important for the children.
In certain circumstances, communication can be difficult and it might not be possible for parents to reach an agreement between themselves, even with the help of friends and family.
However, mediation might well be a possibility. This is a process by which parents and families can negotiate about the arrangements with the children with a qualified mediator present, who is an independent and professionally trained individual who can help facilitate an agreement. Parents can meet through a video link with the mediator who can help the discussions between them and can provide them with vital information in relation to the options that might be available, and ensure that different options can be explored and considered to help them come to an arrangement that is in the best interest of the children.
It is of course still possible to make an application to the court if a parent feels that is necessary. The Family Court is still operating but the hearing is likely to be by telephone rather than in person and there are likely to be evidential challenges in trying to prove whether parental concerns over the Coronavirus are genuine. What is however clear, is that a judge will almost certainly be critical of any parent who manipulates the current situation to their advantage.
How Blaser Mills Law can help?
If you would like any further information on the contents of this article or family law in general please contact Lucinda Holliday on 01494 478603 or at firstname.lastname@example.org. Lucinda is the head of the Family Department at Blaser Mills Law and is a solicitor and an accredited mediator.