This article was originally published in Lawyer Monthly and can be accessed here.

Coronavirus and child arrangements for international families

The Coronavirus pandemic is posing huge challenges to every family. However, families based across more than one country will be facing particular difficulties.

Whilst the government has confirmed that transporting children between homes is permitted essential travel during the lockdown, this will not help international families, where children or parents regularly fly to or from the UK for contact.

Whilst the UK has not yet closed its borders, many other countries have done so, and there are now far fewer transport options with most international flights cancelled. Wealthy families with access to private jets may have more options, depending on where else they have bases. However, if the UK closes its borders they too will be affected. Even without a border closure, the government is advising against all but essential international travel, and families will choose to avoid international travel to reduce their risk of infection.

Where families are based across a number of jurisdictions, this may mean children being separated from parents, and potentially from siblings, for many months. In such cases, parents will need to make remote contact work. International families used to spending time abroad may be at an advantage here, with experience of staying in touch with family and friends remotely. Beyond video calls, online gaming, learning and watch parties can make remote contact a lot more fun for children.

In addition to remote contact, families should consider additional face-to-face contact once restrictions are eased, for example, additional time during the summer holidays.

Unfortunately some parents are likely to use the Coronavirus as pretext for disrupting contact unnecessarily. For international families, where it’s likely that face-to-face contact will not be possible, this is likely to take the form of frustrating remote contact – whether by not making the children available for agreed times, by refusing to agree times, or by distracting children when they’re due to be spending virtual time with the other parent.

The judiciary has been clear that maintaining relationships between children and parents is particularly important at this uncertain time. For international families, this will almost certainly be through extensive and meaningful remote contact. If one parent is obstructing such contact from taking place, then this can be challenged through a court application, and the courts are continuing to operate, albeit remotely. It will be important to ascertain which country’s courts have jurisdiction; the English courts will generally have jurisdiction if the child is habitually resident here.

Whilst the court is extremely unlikely to require contact that would require international travel, if one parent is preventing remote contact, a court order is likely to be appropriate. In practice, however, it is likely be difficult to get an early hearing date, where the courts are facing staff shortages and will need to prioritise the most serious welfare cases, such as where children are being abused. Whether a hearing can be obtained may depend on which region the children are based in, as different court regions have different capacities. Additionally, enforcement will in reality be challenging at this time.

Issues may also arise where applications and orders need to be served across borders, though courts are in any event increasingly permitting service by email or even social media, and would be expected to do so if the pandemic has made paper service abroad unrealistic.

The disruption of parent-child relationships during this emotionally challenging period poses a real risk of damaging that relationship, and where the court has capacity to accommodate a remote hearing, obtaining a judgment that one parent has been behaving unreasonably, and a Child Arrangements Order tailored to the current circumstances, requiring remote contact, may be powerful in sending a clear message to the other parent that unreasonably refusing to facilitate remote contact is never acceptable, and will be harmful to the child.

In some circumstances, arbitration is likely to be a pragmatic and helpful tool for parents unable to agree on the best arrangements for their children, and can, like court, hearings, it can take place remotely. Unlike court proceedings, however, it does, require both parties’ agreement to the process, so may not assist where one party is being deliberately obstructive.

Whether an application is to be made or not, where one parent is unreasonably frustrating remote contact, it would be sensible to keep contemporaneous notes, supported by copies of relevant emails, texts, WhatsApp or other messages as evidence of what has taken place, in case a review of what happened to contact during the pandemic is required in future proceedings.

Any parent who abuses the pandemic to damage their child’s relationship with their other parent is likely to have a hard time in future persuading a court that they prioritise their child’s best interests, and this could limit the amount of time they are able to spend with their children going forward, or even result in a change of the child’s residence. The family judiciary have made their views clear in their guidance, and parents should think of the long term impact of ignoring that on both them and their children.