How to remain calm and both see your children
COVID-19 is causing increased tension for co-parents across the country, as they contend with child arrangements such as contact and home-schooling whilst managing work issues and financial security. Co-parenting in most instances can be extremely difficult and stressful, but co-parenting while social-distancing and self-isolating? Many couples will be finding it impossible.
At these unprecedented times, it is important that parents know they are not alone in the pressures they are feeling and are aware of their rights so that they can protect themselves and their children.
For co-parents affected by COVID-19, you may find the following information helpful:
Child arrangements issued by court order:
The Government has confirmed that, for those with a court order, thetransfer of children under the age of 18 between households, is permissible under the new stay at home guidance. The guidance states: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”This is helpful for co-patents in that it provides some certainty, that they are permitted to drop off and pick up their children without breaching current restrictions.
Child arrangements by agreement:
As with child arrangements made by an order, the guidance remains the same; where possible, parents should stick to agreed child arrangements that are in place and are permitted to move their children between households without breaching government measures.
What are the implications for contact centres?
As a result of the recent announcements, contact centres across the country will now remain closed until further notice meaning facilitated handovers and contact sessions are not possible. If this is applicable to you, unfortunately, for the time being, this form of contact will have to stop.
What happens if a parent behaves unreasonably?
The recent guidance issued by the President of the Family Divisionhas clarified that one parent may unilaterally alter agreed or ordered arrangements if they consider it in the child’s best interests bearing in mind the current pandemic. This is a radical departure from stated law and designed to prevent the clogging up of the court system at this difficult time. However, he makes it clear that if the other parent does not agree with that decision and the matter is brought back to court at a later date, that parent’s actions will be scrutinised for reasonableness. If the parent affected cannot accept the decisions of the other parent or wait for the matter to be dealt with after the pandemic is over, a court application can still be made. However, the courts are only dealing with urgent children matters and getting a hearing will largely depend on the caseload of the particular presiding judge.
Confusion & Clarity
Initially, Michael Gove said on Good Morning Britain that children should remain with the current parent and not be moved to visit their other parent. Later that same morning he backtracked and clarified on Twitter that children under the age of 18 would be permitted to move between homes despite the lockdown.
Following the lockdown, the President of the Family Division issued further guidance to assist parents and also practitioners. It is clear from the guidance that the President does not want the courts to be clogged up by unmeritorious applications and expects parents to behave reasonably. He advises parents to communicate with each other and try to come to an agreement as to any alternative arrangements. If there is already a CAO in place, and the parties agree to vary it, that agreement should be recorded in writing.
If, however, there is a CAO in place and the parties do not agree to vary it, what then? Under normal circumstances practitioners would usually advise parents that court orders are there to be obeyed and if there is no agreement to vary, then a court application requesting a variation should be made, and a court hearing would follow. However, the President says this at paragraph 6 of his guidance:
“Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current [public health] advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, 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”
This is a radical departure from stated law but is clearly meant to alleviate the court system at this time by allowing parents to use their Parental Responsibility to make parental decisions without needing to make a court application. However, there is a clear warning attached to that which says that once the courts are fully operational after the pandemic is over and the matter is brought back to court by the affected parent, the other parent’s actions will be fully scrutinised. If it is found that decisions made by that parent were, in the circumstances at the time, considered to have been unreasonable, then the court has the power to deal with this.
Whilst the guidance now allows a sufficiently concerned parent to unilaterally vary a court order if they consider it necessary in light of the pandemic, practitioners are rightly concerned that this may cause problems.
It would be easy enough for a resident parent to stop contact during this pandemic, citing fears of the virus (which may not be legitimately held), even if it would be safe for the children to move between the two homes, as is permitted by the government. What should the non-resident parent do? Clearly, it would be difficult to issue an enforcement application now as the courts are only dealing with urgent matters. Even if a court hearing could be listed, it may be difficult to prove that the resident parent’s fears were either not actually held or were unreasonable, and only used to thwart contact. Separated parents, who have different parenting styles are likely to have different attitudes to risk. The court would have to decide if the reason for stopping contact due to the coronavirus was legitimate or bogus. If bogus, the court does have the power to make alternative orders or to make orders for unpaid work as punishment or to issue fines.The President must be aware that giving parents the unilateral power to vary court orders without the agreement of the other parent, will likely cause issues. However, as stated, he is expecting his parents to act reasonably. The clear message is that parents need to communicate with each other and apply their good judgement in good faith. This pandemic will not last forever and neither will this guidance. The courts will be back in business and any bad behaviour can, and probably will, be punished.
At paragraph 7 of his guidance the President says this:
“Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone”
Parents are, therefore, expected to make alternative arrangements to maintain some contact with the other parent if direct contact is suspended. In addition, we would advise that parents should agree that any contact which is lost, should be made up once the lockdown and social distancing rules have been relaxed or removed.
What can you both do to help?
Even with all the guidance, we are expecting parents to still be unsure as to what to do for the best. We as experienced family lawyers can therefore offer the following advice:
Life has completely changed in a matter of weeks. Our lives are now unrecognisable and everyone in the world is having to adapt to these new circumstances, whilst also maintaining a semblance of normality. Schools are closed, parents are home-schooling as well as working from home. Some have lost their jobs or have had their businesses collapse. It is safe to say that life is scary right now and the inability to have everyday human contact for fear of spreading a killer virus is terrifying.
For separated parents, where your children usually move between two homes, this will come with its own fears. The non-resident parent will be scared that they will not see their children for the duration or will feel guilt at moving them in order to have contact. The resident parent will be scared to let the children move homes for fear that they will either contract or pass on the virus and may have to then self-isolate with the other parent. There will also likely be guilt on the part of the resident parent if the decision is made to keep the children at home and not allowing the usual contact arrangements.
Our advice is to communicate those fears. Be honest and clear about your concerns with the other parent. It is likely that they will share those fears in any event.
Discuss options, be willing to compromise, get creative in making alternative arrangements. What might work now, in this unique situation, which you may not have tried before? Could increasing the time in each household work better so that you limit the number of movements? If there is a vulnerable person in one household, consider the 14-day self-isolation rule before moving children to limit the possibility of carrying the virus and passing it to vulnerable people.
Get creative with technology. Whilst Facetime has been around for some time, Zoom calls are now very popular for the whole family to get involved with.
Make the right decisions for now.
Many parents will be worried about agreeing something else for fear it might set a precedent for the future. For example, agreeing 7 days on and 7 days off split which they might not have considered beneficial previously. And whilst this arrangement might work now, and have clear advantages by limiting movement, a parent might be reluctant to agree to it in case the other parent wants it to continue post the pandemic.
Whilst these concerns are legitimate, our advice is to consider what is in your children’s best interests now. We can deal with what is in their best interests after the pandemic, after the pandemic. Children’s arrangements are always variable in any event and agreeing something which is clearly pandemic-specific, would not mean that you consider these arrangements to be permanent. Again, it is important to communicate clearly with the other parent the reasons for making alternative arrangements, but do not let the fear of the future influence you against making different decisions now.
If you are a separated parent without the benefit of a CAO, the above still applies to you. If you both consider it safe to continue with the agreed arrangements, keep them going. If either of you wants to make a change, communicate your reasons and have an open and honest discussion about what you consider to be in the children’s best interests. If you can agree on an alternative schedule, record that in writing. If you cannot agree an alternative schedule, if one parent makes a unilateral decision, the other parent will have to consider whether to make a court application or whether to wait until the pandemic is over to obtain a CAO.
Getting into court at the moment will be difficult. Whilst the Judges are still sitting and are hearing cases remotely, all but the most urgent cases are being dealt with. Each case will be fact specific and you will need to decide whether you consider your matter to be urgent enough to merit an application and hope that the matter gets heard.
Whether you already have a CAO which the other parent has decided they cannot comply with in this situation, or you only have an agreement which the other parent is ignoring, mediation is an option.
Mediators are fully set up to work remotely and can be on hand very quickly to help you resolve issues. You will likely get a quicker and cheaper result by mediating so this is worth exploring.
If mediation is not suitable, then consider Arbitration. This is like a private court hearing where an Arbitrator is appointed, and the parties agree that their decision will be binding on them like a court order. The Arbitrator will likely be a retired Judge, or a specialist barrister and again, they are able to hear matters remotely. An Arbitrator can either hear the whole case or can be used to decide discreet issues. This will also likely be a quicker and cheaper option than issuing proceedings.
We Are Here to Help
If you are affected by any of the issues raised in this article and would like to speak to a solicitor for some advice, at A City Law Firm we have an experienced Family Department that are happy to assist. Please get in touch by emailing firstname.lastname@example.org calling 0207 426 0382 to find out