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Alexandra Baggallay considers options available for separated parents during COVID-19 in New Law Journal

  • April 21, 2020
  • By Alexandra Baggallay, Senior Associate

This article was originally published in New Law Journal and can be accessed here

COVID-19 poses huge challenges to all families, but particularly for separated parents working out how best to co-parent during a pandemic.

Many children whose parents are separated spend time with each parent, whether that is a few hours on weekends, or by dividing their time equally across two households. The old terms “contact” and “residence” have been replaced with “child arrangements”, and an order setting out which time the child is to spend with each parent is a “Child Arrangements Order” (CAO). Many separated parents do not have a court order setting out the arrangements for their children, where they have been able to reach agreement on the arrangements without court assistance.

Can existing arrangements continue?

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 provide at s6(2) that “During the emergency period, no person may leave the place where they are living without a reasonable excuse”. S6(2)(j) includes as a “reasonable excuse”:

in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child”.

It is clear, then, that parents may continue to transport a child between households in order to maintain existing child arrangements, irrespective of whether these are provided for within a court order.

Must existing arrangements continue?

However, as the guidance released on 24th March 2020 by Sir Andrew McFarlane, President of the Family Division, emphasises, this does not mean that the children who spend time in two households must move between them during the pandemic. The guidance goes on to state that:

The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

It will therefore be for the parents to decide what the most sensible course of action is for their children in all of the circumstances.

Should existing arrangements continue?

Cafcass, the Child and Family Court Advisory and Support Service, have produced helpful guidance for separated parents during the current pandemic. It was produced shortly before the lockdown commenced and should be read in that light. The guidance emphasises that continuing the existing arrangements “will help your child to feel a sense of consistency, whilst also reassuring them that the parent they don’t always live with is safe and healthy”.

Whether this can be achieved, however, will depend on a number of factors, including the health of the child or children and their parents, the length and nature of the journey between their homes, and whether there are any vulnerable people in either household, such as a grandparent, pregnant person, or someone with an existing health condition. If one household has a member who is regularly going to work, such as a doctor, nurse or other key worker, then whether it is best to limit interactions between the households may be a particular consideration.

There may be practical, as well as health, considerations for parents to take into account when considering whether the previous child arrangements are suited to the current reality. It may be that one parent is better placed to care for the children in the present circumstances, for example if one parent is a key worker and less able to manage childcare or to support home-schooling. Parents also need to keep in mind that where a child is moving between households, if a member of one household develops symptoms whilst the child is there, the child will then need to self-isolate in that household for the required period.

Separated parents will need to be flexible and try to communicate with each other effectively in an effort to agree sensible and practical solutions. Arrangements may need to evolve as guidance and circumstances change.

What alternatives exist if face-to-face contact can’t take place?

The President’s Guidance provides that where a child is not able to spend time with a parent as they otherwise would, “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”, by video-connection, or where that is not possible, by telephone.

Maintaining a strong relationship with a parent they are not seeing face-to-face during this challenging and extraordinary time is essential for a child’s emotional well-being and for the future of the parent-child relationship. A routine should be established, just as it is for face-to-face contact, especially for younger children, so that contact is not simply left to fit in around other arrangements. Parents can be creative about how contact takes place, which, as well as video-calls, could include online gaming or learning, or watch parties.

The Cafcass advice suggests that if the children miss out on face-to-face time with a parent during the pandemic, parents should consider “making up” this time in the future, once restrictions are lifted.

What if parents can’t reach agreement?

In many situations, there will a range of appropriate choices. As the President’s Guidance sets out, “even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this”.  However, where parents do not get on, or there is a lack of trust, reaching consensus will be even more difficult.

There are, therefore, likely to be many cases where separated parents, both acting in good faith, have different views as to whether face-to-face contact is appropriate. In these cases, the parties may be assisted by mediation as a neutral forum for talking through the issues and concerns, and exploring options, with many mediators working through video-calls during the pandemic. Unfortunately, there will also be cases where a parent uses the current crisis to deliberately obstruct contact.

The provisions of the Children Act 1989 provide that the court will not enforce a CAO where the person in breach “had a reasonable excuse for failing to comply” (at s11J(3)). The President’s Guidance further provides that:

“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”. 

In practice, this means that the parent with whom the child is currently based will have much of the decision-making power for the time being, which is likely to be frustrating for the other parent. This is a significant departure from previous practice, where unilateral derogation from court-ordered arrangements is much discouraged, but it does reflect the challenging reality and the difficult balancing act the current situation requires.

Whilst this power may be open to abuse, so too would allowing one parent to veto any change to the existing arrangements, which could put a child’s physical health in danger. There is no perfect solution and the court will not have capacity to deal with every case where agreement cannot be reached. The longer the lockdown continues, the greater the risk posed to the child’s emotional well-being by reduced contact, and it may be that further guidance will be released as the time-frame becomes clearer.

The President’s Guidance goes on to warn that if a parent’s unilateral actions are subsequently questioned, the court is likely to look back on whether the parent acted reasonably and sensibly in the light of the rules then in place. This is likely to be a difficult assessment to make, but blatant unreasonableness (for example, a refusal to facilitate even remote contact) may weigh against a parent or undermine their credibility in a future dispute over child arrangements.

Where parents have not been able to agree and one parent makes a unilateral decision to change arrangements, it would be sensible for them to keep a record of their reasons for the decision in the context of the guidance in place at the time, as evidence in any subsequent proceedings that they had given due consideration to the issues. It would also be sensible for them to make sure they have explained their reasoning to the other parent.

Can an application be made to court to resolve the disagreement?

The Family Court is continuing to operate remotely, but its capacity is reduced. An update released on 6th April setting out the Family Court’s priorities during the pandemic lists non-urgent private law children work within the lowest category – “work that we will do our best to do”. Enforcement of CAOs will not be considered urgent work (unless, of course, a genuine welfare concern exists).

Whilst different court regions have different capacities, parents should not assume that they will be able to use the court system to enforce a CAO. Where both parents are willing to enter into arbitration to resolve any dispute, this is an option, and can take place remotely.

There are no easy answers for separated families during the pandemic. Parents must be encouraged to put their children’s best interests first, and reflect on the damage that an unreasonable approach would cause to their children – whether that is by unnecessarily restricting contact, or by refusing to acknowledge that face-to-face contact is not currently safe.

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