Following the announcement of the lockdown, we have been inundated with enquiries from our existing clients and new clients as to the effect that this will have on current child arrangements they have in place.
Sir Andrew McFarlane provided guidance on the 24th March 2020 in an attempt to address the concerns of separated parents. The guidance emphasises that parents should continue to stay at home and adhere to the government guidelines, however there are some exceptions to the rule namely that when two parents do not live in the same household, children under the age of 18 can move between their parents homes. The emphasis on this is that it states ‘can’ and not ‘must’ move between their parents’ homes and it is left to the parents to weight up the risks and concerns of the parties to make a decision for the best interest of the child or children.
Some parents are concerned that travel between parents’ homes is not ‘essential travel’ and they may be faced with fines. This is not the case and the guidance provided allows the travel of children under the age of 18 to travel between parent’s homes without any sanctions.
The guidance goes on to state that if both parents have Parental Responsibility it is hoped that they are able to make decisions for the benefit of the child or children and it is not for the courts to make this decision. Parents need to take into consideration all factors which include, the health of the child, the risk of infection and the presence of any vulnerable people in the households.
I have detailed below some of the frequently asked questions that I have been faced with during the lockdown:
I am on lockdown with my child and we are having no other contact with anyone else, save for essential trips to the supermarket. My ex-partner is a ‘key worker’ and he is exposed to the virus daily. Should I continue to allow my child to see him?
In the above scenario parents need to consider the likely hood of contracting the virus and how this will affect the child. If for example the child has an under lying health issue, then it may not be advisable to have contact with their father due to the risk on the child’s health which can be avoided. Consideration should be taken on how the child can maintain a relationship with his father during this difficult time. Could daily video calls take place? Help with homework through video calls? Read bedtime stories through WhatsApp? Parents need to be imaginative to try help each other during this difficult time to ensure that any child involved is not affected. In this scenario there is no right or wrong answer and it is up to the parents to make the decision whilst considering the welfare of any child involved.
If you are unable to reach an agreement, as a parent with Parental Responsibility if you think your child will be put at risk to allow the contact to take place then despite any court order in place you can withdraw contact. It is then up to the other parent to exercise their parental rights by making an application to court.
Both households are in lock down save for essential trips to the supermarkets and working from home but my ex-partner will not let me see the children. What can I do?
If two household are both self-isolating and not exposed to the virus other than essential trips to the supermarkets, it is hoped that parents are able to co parent and asses the risks and allow the travel between households to allow the child to continue a meaning full relationship with both parents and allow some consistency.
Making a referral to a mediator for both parents to discuss their concerns and discuss amicably how to deal with the current situation may be beneficial. You could also write a solicitor’s letter to the other parent to request further details as to the reason for their decision.
I have a Child Arrangement Order in place. If we do not follow this will we be in breach of the order?
The guidance is clear that if there is a current child arrangement order in place it is not necessary to apply to the court to vary the order but parents can co parent and agree to vary temporarily the agreement and it is sufficient for this to be recorded by way of text messages, email etc.
I am a Key worker and the children live with me. I am worried that I am exposed to the virus and my daughter has health issues and she is at risk. If they go stay with their Dad will this continue after lock down?
Any amendment to arrangements during the current pandemic is only temporary. I would suggest that any change to arrangements is documented as temporary via text messages, emails etc.
What happens if I have a Child Arrangement Order and I cannot agree with the other parent how to vary this?
It may be that you cannot co parent with the other party to vary the existing order or it may be that you do not share the same concerns as the other parent. The guidance suggests that parents with parental responsibility can exercise their rights and prohibit contact. If the other parent takes the matter back to court, the courts will consider if the decision to rescind the order was justified given the current pandemic or an excuse to stop contact between the child and the other parent. It would then be up to the courts how they address this if it is found to be the latter.
The courts will also look at what other arrangements were offered to allow the child to continue their relationship with the other parent i.e. the offer of regular video calls etc.
My ex-partner says I cannot see the children because it is against The Stay at Home Rules?
Yes, it is correct that the general Stay at Home Rule no longer permit for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work. It is also important to take on board that the government quickly provided guidance issued alongside the Stay at Home Rules on 23rd March that deals specifically with child contact arrangements and it states as follows:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
This establishes an exception to the mandatory ‘Stay at Home’ requirement but it does not, however, mean that children ‘must’ be moved between homes.
It is important to note that a child’s parents with Parental Responsibility need to make a sensible assessment of the risks associated with this and of the current circumstances before making a decision.
What can I do if my ex-partner is refusing to let me see the children for no valid reason?
Many people are very worried about the current coronavirus and communication is key in finding out what the other parties concerns are. If parties are able to communicate effectively, they can listen to each other’s concerns and in some cases, they may be alleviated. So often people make assumptions and it may be that these assumptions are incorrect. One person may think that the other person is not taking the current situation seriously and they need some reassurance. This reassurance can be agreed directly, through mediation or via a solicitor letter. If you require any assistance in relation to this, please contact us.
Can we agree alternative arrangements and is this sufficient?
Yes, if one parent is not able to spend the time that they usually do with the children, it is advisable to offer alternative arrangements such as video calls via Face time, WhatsApp, Skype, zoom or other means. You could also make arrangements to make up the lost time at a later date when the restrictions are lifted. This is advisable in order to avoid criticism from the courts if the other party pursues an application through the courts.
I am in lock down and my ex-partner said that he is but I know that his new partners children are seeing their father? I don’t want to be seen as stopping the children from spending time with their father but I am genuinely concerned. What can I do?
If you have genuine concerns about the child or children exposed to the virus and you think you are justified in your reasons you can exercise your parental rights and state that the children will not be spending time with the other parent. If the other parent is not happy with the decision you have made they can exercise their rights by making a referral to mediation to discuss further and if mediation is not suitable or both parties not willing to attend a joint session then the other party can make an application to court to exercise their parental rights.
With the current pandemic it is unknown when your matter will be heard, and it will be in any event via video link and not face to face. I predict that if there are no safeguarding issues the courts may not be sympathetic about the issues if it is simply the case that parents are being difficult with one another and not putting the best interest or wellbeing of the child or children first. As this situation is very new it is unknown how the courts will deal with matters such as this.
I have read the guidance in detail and I think the most important thing that parents can take from the current situation is to try communicate with the other parent and reach an agreement together by co-parenting for the benefit of the child or children. It is important to ensure that the children’s welfare and the wider family are at the forefront of any decision and not as a way to hinder any existing agreement in place. The Guidance is clear that it is hoped that parents will take the essence of the order and adapt it to the current situation where possible.
I am currently offering free initial consultations and I am happy to discuss with you the different options as a solicitor and mediator that are available to you.
Sarah Manning
Associate Solicitor, Mediator
Consilia Legal