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Family analysis: Marilyn Bell, partner and head of the family team at SA Law, Jonathan Evans, barrister at 4PB, Katie Spooner, partner at Winckworth Sherwood and Chris Longbottom, partner and head of the Manchester family team at Clarke Willmott, consider how the coronavirus outbreak may effect arrangements for children whose parents are divorced or separated, both in cases where a court order is in place and those where the arrangements are more informal. How the court may deal with the breach of an existing order is also examined.
President of the Family Division: Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders (24 March 2020)
How may the coronavirus impact on contact arrangements? How might shared care work?
Marilyn Bell (MB): Many separated parents are able to prioritise their children above their own feelings towards their former spouse. Sadly however this is not always the case. A parent who does not really want the children to spend time with the other parent will often look to find reasons why contact shouldn’t take place and illness can be used as a reason. If a child is seriously unwell it may not be best for them to travel even a short distance to spend time with the other parent on agreed or court ordered dates (and to do so would be contrary to the guidance). However, in many cases a child could be looked after equally well during an illness by either parent and could travel to the other’s home but illness, even a slight cold, may be given as a reason to cancel contact. In ordinary times a doctor’s sick note could be obtained to substantiate the child’s illness.
Jonathan Evans (JE): Fears over coronavirus are already affecting child arrangement orders made by the family courts. Parents must comply with court orders unless there is a reasonable excuse not to and failure to comply with an order can amount to a contempt of court. There have been three primary categories of enquiry. First, where one parent lives abroad and regularly flies over for contact with their children—current travel advice is preventing many parents from seeing their children. Second is where a primary caregiver fails to make the children available for contact, either because they or the children have had genuine symptoms, or due to a fear that the other parent will retain the children, or because the primary caregiver uses the current situation as an excuse to stop contact. The third category of enquiry is where a parent has contact with their children and retains them, saying that they or the child displays symptoms.
Katie Spooner (KS): To echo a familiar phrase, we are in ‘unprecedented’ times. As the situation with coronavirus progresses rapidly, and with the announcement of an effective ‘lockdown’ (in all but name) on 23 March 2020, parents and children of separated families in particular face real uncertainty. Co-operation between parents is going to be essential, now more than ever, although that might be easier said than done for some parents who are already or have been locked in conflict. The measures announced by the Prime Minister on 23 March for staying at home do not mean that arrangements that are in place for children to spend time with each of their parents, including shared care, should fall away. These arrangements, whether informally agreed or set out in a court order, remain effective and should continue to be followed. Taking children from one home to another is a legitimate journey (according to Cafcass and government guidelines). Indeed, the latest guidance from the government expressly states that ‘Where parents do not live in the same household, children under 18 can be moved between their parents’ homes’. Practically speaking, it will be beneficial for separated parents to discuss and agree the approach being taken in each of their homes as to hygiene, home schooling and preventative measures being put in place, so that parents (and their children) feel reassured that the same rules apply in both homes. Consistent messaging for children and maintaining routines as far as possible will be key in these worrying times.
Chris Longbottom (CB): The coronavirus lockdown should not be used to prevent a child from having contact with another parent and to prevent contact would not, in most cases, be in the best long-term interests of the child. There may be good reasons for both parents to agree to cease, or perhaps alter, arrangements in order to remove risks for the foreseeable future, but hopefully this will be short term. The government clarified an earlier statement that children should stay in the house they are currently in and not travel between households when it recognised that this may be necessary when children, who are under 18, move between separated parents. For many families it will be an incredibly difficult time—each case is different and parents need to consider their own circumstances, such as whether they are key workers and whether one of the homes has a vulnerable person present. In some cases, the parents, children or other family members may already be isolating due to symptoms being present in the home. Also, where public transport is relied upon, it will be disrupted and may not simply be feasible at this time.
What if one parent is self-isolating or taken ill?
MB: The current guidance is that if anyone has one of the listed symptoms they should self-isolate for seven days. Anyone in contact with an infected person should self-isolate for 14 days. Bear in mind this scenario: the children could go to parent one for the weekend, and while there parent one’s new partner develops one of the listed symptoms. The children and parent one should remain where they are and self-isolate for 14 days. If the government guidance is followed, parent one in that situation should not return the children to parent two.
JE: The advice to any parent must be that orders should be complied with unless to do so would put the child, or others at risk. Routine is particularly important for children who are seeing their school lives disrupted. Handovers can still be effected, even with current guidance on social distancing (as opposed to self-isolating). If it is impossible to promote face-to-face contact, parents should try and think flexibly and include regular video contact to maintain relationships as best they can. Clear and early communication between parents, potentially using third parties, should be encouraged.
KS: If a parent or child is showing the symptoms of coronavirus, the parent should visit the NHS website and use the 111 coronavirus service as appropriate. If, as a result, a parent has to place themselves in quarantine, it may be that the child cannot spend time with one of their parents as they would usually. If faced with this situation, flexibility is key, and it is important to continue to promote the relationship between the child and their other parent. Parents should take advantage of the abundance of technology available to facilitate alternative, indirect contact between the other parent and their child, such as by phone, FaceTime and Skype. Where children have missed out on spending time with one parent, the other may want to agree to the missed time being made up over the summer holidays, for example. Children are going to find the current situation worrying, and where they have an established relationship with both parents, it is important that they continue to have regular contact on the phone/FaceTime with both parents in order to feel reassured and to alleviate any anxiety they may be feeling.
In high conflict families, the willingness of parents to facilitate indirect contact or be flexible in child arrangements could well be an issue. In these extraordinary times, it is important to focus on what is in the best interests of the children. They need to be shielded from conflict and feel secure in their relationships with both parents. There will be situations where it may not be safe for a parent to facilitate a child spending time with the other parent, or even for parents to communicate in order to facilitate indirect contact (ie where there have been issues of domestic abuse). In such circumstances, where there is a genuine risk of harm or welfare concerns, consideration should be given to what measures ought to be put in place to protect the child’s wellbeing.
What steps can be taken if a child arrangements order is breached? How will the current largely remote access to the courts impact on any existing proceedings or on enforcement?
MB: If there is a court order for the child to be returned, in these exceptional times, parent one should follow government health guidance and retain the children and self-isolate within the home. Parent two, in this example, may doubt the truth of the symptoms, and feel parent one is using coronavirus to retain the children. Some parents are so hostile to the other parent that this is not out of the question. In normal circumstances, and if there isn’t a court order but this has been the usual arrangement, parent two could apply to the court for the children to be returned. The Family Court is still operating but the hearing would be by telephone rather than in person. Parent two would say they don’t believe parent one’s partner is ill. The court will have to consider the best interests of the children, and unless there were exceptional reasons, I consider a court would not order their return. The court would be unlikely to have any evidence, as it could not require parent one to provide a positive test result as tests are not available. The court would be put in the position of making an order that breached the government protocol in this international health emergency. Providing the court thought the children were safe and appropriately cared for by parent one, it is likely to leave them there until the end of the 14 day period. This could of course be even longer, ie if on day 13 one of the children showed symptoms, that child would then have to remain in isolation for a further seven days.
JE: There are likely to be evidential difficulties in proving whether parental concerns over coronavirus are genuine, due to difficulty in attending a medical professional. A court may give parents the benefit of the doubt, potentially leaving the system open to abuse. However, courts will also consider a parent’s past record of promoting contact as part of the overall factual matrix. Courts remain functioning and are dealing with many hearings remotely, so applications can still be made. A judge is likely to be critical of any parent that manipulates this situation to their advantage. Therefore what may appear a short-term strategic advantage, may well backfire in the longer-term.
KS: Thought needs to be given as to why the order has been breached. Is it the result of unavoidable circumstances resulting from the coronavirus pandemic that is out of both parents hands? In which case, both parents need to come together and be flexible, and try to work out an alternative arrangement that is best for the child during these difficult and uncertain times. Whatever the reason, the first step should always be to try and agree arrangements. Where parents are unable to do so, it would be sensible to ask a friend or family member that is trusted by both parents, to see if they can help broker agreement. If not, parents may benefit from mediation, or assistance from a parenting coordinator or family therapist, all of which can be facilitated remotely, without having to leave home. Ultimately, applications to enforce child arrangements can be made to the court, but this should be as a last resort.
Court hearings are still running but are taking place remotely, with parties dialling into hearings or using video link, unless it would not be appropriate to do so. Almost all hearings regarding child arrangements will be able to take place virtually. For new court applications there could be delays in applications being processed and cases being heard given the precautions having to be taken to follow government advice (it could be that there are fewer members of court office staff, for example). Anecdotally, at this very early stage following the Prime Minister’s announcement on 23 March, it seems that not all courts are taking the same approach as to whether to close or stay open, and this will have a knock on effect on administration and communication with parties.
CB: Where parents are at odds as to what they believe is best for the welfare of the child, then they should consider consulting an expert meditator and this can be done remotely. If absolutely necessary and in cases of real urgency, court intervention may be sought remotely, but how to proceed will depend on individual circumstances.
Interviewed by Geraldine Morris, solicitor and head of Lexis®PSL Family.
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