Written by Kathryn McTaggart

Family Solicitor at Woolley & Co

Kathryn has been named as a Leading Individual for Family Law in Wales in Legal 500 for the last four years. She specialises in divorce and separation, as well as related financial matters, and has a particular interest in disputes around children. This includes specialist knowledge of applications by a parent to move with a child to another country. Kathryn is a long-term supporter of OnlyMums & OnlyDads.

In this article Kat and her colleagues share their understanding of the law and experiences of their clients to help readers navigate their way through childcare at this difficult time.

The Law

Child arrangements orders must be complied with unless there are specific health reasons that would make moving between two households unsafe or the isolation requirements required by Public Health England/Wales apply (in which case there will be a temporary suspension for the duration of the isolation period).

If a child does not get to spend time with the other parent as set out in a child arrangements order, the courts will expect alternative arrangements to be made to establish and maintain regular contact…

The government have explicitly confirmed that children are permitted to travel between parents’ homes under the stay at home measures currently in place.

Guidance from the President of the Family Division For Parents About Child Arrangements

If a parent stops a child seeing his or her other parent face to face, the court in the future will look to see whether that 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.

If a child does not get to spend time with the other parent as set out in a child arrangements order, 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 – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone. (CAFCASS have also given guidance on what is expected of parents in this situation).

How Magistrates And Judges Will Interpret The Guidance

Stopping a child from seeing his/her other parent unless there are legitimate health reasons to explain why is unlikelyto be viewed by the court as reasonable or sensible.

Failing to make arrangements for a child to spend time with his/her other parent by phone or app is unlikely to be viewed by the court as reasonable or sensible.

COVID 19 is not a licence to breach an order.  Family lawyers should be advising parents to adhere to existing orders where it is safe and practical to do so and any justification for not doing so will need to be evidenced.

It is the writer’s view that what will be considered sensible and reasonable will be considered in the fulness of time against the family background and litigation history and in the context of the quality and consistency of alternative arrangements offered.

Countries with similar family law systems to ours such as Ireland, Canada and Australia, have made it clear that they expect parents to follow court orders.

So What Are Your Options

  • Reason and reassure (even if you think it is unreasonable – scared people can be very unreasonable and arguing is unlikely to make them less so)
  • Offer/accept a different way of spending time for now (some contact is the best option for your child and it demonstrates to the court that you are acting reasonably and sensibly)
  • Try video or telephone mediation to see if a neutral third party can help you find a temporary way forward (you would need to do this before making a child arrangements order application in any event)
  • Speak to a lawyer to see if you can get a dialogue going or prompt your child’s other parent to take advice
  • Make an enforcement application (if you have an existing order) or apply for a child arrangements orders (if usual arrangements have been stopped and/or if you would like to arrange some ‘catch up’ time in the future).

Remote Mediation – Louisa Whitney (LKW Mediation)

Family Mediation is a great way to address short term or long-term difficulties with regard to arrangements for children.  Because of the lockdown all family mediation meetings are taking place online and meetings can be set up in a matter of days (or weeks at the most), which can resolve issues much more quickly than using different processes.  You won’t need to leave your home to have a meeting, and many mediators are offering evening meetings to ensure that parents are able to talk when children are in bed.

It’s a place where you can talk about what you would like to happen; what you’re concerned about; and also listen to how your child’s other parent feels about these issues.  Understanding where you are each coming from is a big part of finding a solution.  You might not agree with the other person’s views; or why they’re fearful; but by understanding how they feel you can start to build a solution.

The presence of a professional family mediator can help to stop discussions quickly becoming an argument.  They can also help you to stay on track with particular issues rather than jumping from issue to issue and ending up going round in a big loop.  Family mediators are also hugely knowledgeable about the situation you find yourself in, and have seen many different parents put in place many different arrangements, so they are well placed to suggest ideas you may not have thought about.  This can help you to find a palatable way forward for you both (which may not be what either of you originally wanted) which will minimise the upset for your child or children.

This is a time of considerable anxiety and children pick up on anxiety and tension around them.  Worries about the pandemic combined with worries about seeing a parent, or about conflict between their parents, could make the world seem a very challenging place for your children and addressing issues as quickly as possible may well help to bring down everyone’s anxiety levels.

Example Of Scenarios We Have Been Dealing With

The continuous cough:

We have had a flurry of enquiries about what to do if someone has a cough or other symptoms. Is that a reason not to let a child travel to the other parent?  Following Public Health England/Wales advice, the answer is, short term, yes.

When arrangements are disrupted because the child or someone in the household is symptomatic or needs to isolate there can be nagging worry that 7 days might become 14 days and 14 days will become 28 days etc.

If a parent refuses to handover (or return) a child because or someone in the house is sick, be calm, keep communicating, make alternative short-term arrangements by phone or app and remember isolation periods end.

If isolation periods run back to back for an entire public health crisis, we have made it very clear the Court is unlikely to consider that a parent has behaved sensibly and reasonably and there may well be consequences to decision making that is for the comfort of parents rather than the welfare of children.

Babies and very small children:

Practically, moving babies between households for short periods of time where mother or other family members are assisting or supervising is going to be very difficult to do and adhere to the stay at measures between households.

In one separated family involving newborn twins, it was possible to agree Facetime live stream or sharing of film of the babies playing with mobile, in their cot etc. twice a week.  This was conditional on both parents ceasing all reference to the children on all forms of social media and until the stay at home measures end or something else changes.

Father had to be practical and Mother was advised that this is a temporary situation.  Avoiding contact now would not mean it would not be dealt with once the public health crisis ends and she realised that offering nothing would not show she was acting in the children’s best interests.

Families at increased risk:

Some people do have health conditions that will require them to self-isolate or shield and that means that it will not be safe for a child to move between homes.  Do communicate clearly on this and, whilst parents are not entitled to be privy to private medical notes, we have found sharing a shielding letter or providing an explanation as to why self-isolation is a necessity rather than a desire will go a long way to promoting acceptance if not agreement.

If older or vulnerable family members are in the household, new arrangements should be made for health reasons. Be realistic – it might not be safe for a child to move between households and that is no one’s fault – and look to what you can put in place now and in the future. Some of our parents are in this position and focusing on looking forward: longer holidays and catch up time.

If a child’s other parent is a key worker, don’t suggest that this is a reason to change residence by the back door – it is only going to increase fear – but do offer childcare.  This has worked for one of our families, helping the key worker mum practically and reassuring her that dad was not manipulating the situation to change the status quo. Dad’s fears about the children being at higher risk of exposure to the virus were also managed. Be aware that the settings that exist in school should be a last resort so don’t look a gift horse in the mouth if assistance with childcare is offered. The safest option for children in this health crisis is to be at one of their parents’ home.

Some NHS key workers have very reluctantly decided that it is best for their children to stay with their other parent whilst they work on the front line for the duration of this epidemic. That is a personal decision based on specific risk assessment and in no way should be seen as mandatory or ‘the norm’.

Travel arrangements:

Using public transport to move children between households is best avoided so rather than argue the toss, make other arrangements.  One mum offered to drive the children in a private car even though she didn’t normally have responsibility for travel arrangements. This is a sensible and reasonable adjustment to make.

If parents need to travel long distances to spend time with children, it does not mean it shouldn’t happen. Parents should risk assess travel and communicate on what can be done to make it more comfortable i.e. minimise loo stops and breaks, meet half way, ensure there is a hand sanitizer in the car and the children have drinks and snacks so there is no need to stop and purchase them. Spend longer periods of time to minimise travel and handovers.

Unfortunately, children who travel between countries to see their parents are unable to do so for the foreseeable future.  In most cases, robust arrangements will already be in place for indirect contact, but additional holiday time is likely to be on the cards for those children once travel restrictions are relaxed.

“I don’t have Skype”:

We have had a number of objections to indirect contact on the basis of technology. Not everyone is tech savvy but most video apps such as Zoom, House party etc can be accessed by means of one parent sending a link to click on. Most people will have access to some form of video call such as FaceTime but everyone will have phone access.  Some contact centres will facilitate video contact so see what is available. As a last resort, send cards, pictures and magazines via post – it is slow but it is still working.

The other common objection we hear is “I don’t want her/him calling my mobile phone constantly” or “He/she will expect my child to walk around my home filming it”.  No one should be allowed to use this situation to control or harass someone or invade another’s privacy and these are valid concerns.  However, with a bit of structure, these worries should not be a reason not to facilitate video contact.

Being out of school and with parents juggling home working and other responsibilities within the stay at home measures, means children have long, unstructured, boring days. Scheduling in phone or video contact can be helpful for everyone. Set times and a designated chatting space (preferably with a monitor or laptop if available) gives everyone space and comfort.

Lots of our families are using Zoom, FaceTime, Whats App to chat, read stories, show and tell, help with schoolwork, do PE with Joe Wicks etc.  Most of your child’s home-schooling requirements will be online so log in and stay current and perhaps pick some tasks you can complete together remotely.  There are some great drawing games and quizzes on House Party.  Try to look for the opportunities – whether that is a break from childcare or a chance to be more involved in the day to day minutiae than you would normally (and to show off your parenting skills to someone who usually doesn’t see them first hand).

Opportunities For Change

One of our lawyers recently had an update in a case where the final order set out a child would spend most of its time with one parent.  After schools closed, the parents agreed a shared care plan of 50/50 to help the child through this period, to be reviewed on return to school.  This was a great outcome for a parent who worked tirelessly to avoid conflict and improve relations with the other parent.

Another very high conflict family whose children have been subject to a very detailed child arrangements order (which had been returned to the Court for interpretation and enforcement on multiple occasions) managed to agree it was best for the children to live with the furloughed parent during the week and the working parent on weekends.

Does it matter if these changes have come about through necessity or because there has been a genuine shift in attitude about what is in the best interests of the children?  From the children’s perspective the net effect is the same and it is an awful lot of work for grown ups being awkward and angry in a pandemic – enjoy having one less thing to worry about.

A Final Word On Communication

Communication has been raised time and time again but please do keep in touch with the other parent and, if you are frightened, share your fears.  It should go without saying now that parents will not be taking children out and about but if you are concerned say ‘can I just check you will be staying at home?’ ‘Do you have enough hand sanitiser or shall I send him/her with a bottle?’ Ask nicely and respond compassionately (even if you feel restricted or picked on) – we are all unusually fearful at present.  Try to remember that the thought of not seeing a child for a potentially undefined period is going to create some huge emotions – be kind.

And if you can’t have face-to-face contact (even if you feel this is unreasonable) make the best of what you can have. The parent on lockdown with the children will have their own challenges – there are no winners here. Your life-long relationship with your child, ultimately, is not going to be irreparably damaged by these miserable weeks.  And when this is all over, there will be an opportunity to sort out extra time (either by agreement or if necessary, by asking for a court order).

Your children are likely to be anxious, bored and discombobulated.  If you can keep communication open and you can find a way to muddle through this, it will be life changing for them, now and in the future. COVID 19 may have given separated parents the best opportunity they will have to show their children they can work together in their best interests. Keep calm, communicate and try to find the big picture.

 

 

 

 

 

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