What to do about children spending time with their separated parents during COVID-19

COVID-19 is racing through the country and the nation is on lockdown. Separated parents are already dealing with the logistical difficulties caused by the closure of schools and nurseries. Additionally, there is the issue of when and how the children should see the parent with whom they don’t live.

The lockdown provision (the so called ‘ Stay at Home Rules’ of 23 March 2020) allows for children to move between the homes of separated parents but complications still arise when a parent or child is self-isolating, or where the practicalities of contact make social distancing impossible to achieve. The President of the Family Division, The Rt Hon Sir Andrew McFarlane, issued guidance on 24 March 2020 entitled “Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders” (available at www.judiciary.uk).

That guidance makes clear the following:

1. Parental responsibility for children lies with the parents, not with the Court. Parents are therefore expected to make decisions for their children. If, in the current circumstances, parents agree to contact taking place in a way other than that provided for in a Child Arrangements Order, they are free to do so and should record that agreement in writing (including by text or email).
2. Parents are expected to act “sensibly and safely” when making decisions about their children and are expected to comply with government guidance. If a decision is made to allow the child to visit the home of the parent with whom they do not live, that decision is expected to have been made in light of the health of the child, the risk of infection and the presence of any recognised vulnerable individuals in either household.
3. ​If no agreement can be reached between the parents, then one parent can vary the arrangements but they should be aware that if the Family Court is involved at a later date, the decision will be examined to see whether it was sensible and reasonable in the circumstances. Evidence about the specific family will be considered. The Court expects that if face to face contact is not taking place (whether that is by agreement or not), alternative contact would be substituted, for example Facetime, Skype, WhatsApp or some other video connection. Failing that, telephone contact should be arranged.

 

So what does this mean in practice?

Firstly, if the child or the parent with whom the child is living is self-isolating, then contact can only be by video call, telephone, social media or cards etc. Every effort should be made to establish that alternative contact; it maintains something of a routine for the child and is what would be expected by the court.

If self-isolation is not a feature, direct contact can continue as long as social distancing is maintained. The child does not have to distance from the parent with whom they do not live, but it does mean that activities are very much restricted. Furthermore, public transport is to be avoided  which could mean for some families that travel to and from contact is impossible. Again, in those circumstances, contact via video call or telephone should be arranged.

In the event that the parents cannot agree a contact schedule for this temporary situation, the reality is that the Family Court is unlikely to be available for a very long time.

That leaves three options:

1. ​Make the best of the situation and maximise the alternative contact offered. Make a careful note of what the other parent offers and their reasons for that.
2. If you think that further discussions with the other parent would assist if those discussions were helped by an independent third party you could try mediation. That is a service for which you pay a fee and which takes place over one or more sessions. The role of the mediator is to facilitate agreement.
3. If you do not think that any amount of discussion between you will sort matters out you should consider arbitration. This is a service for which you pay a fee and an specialist family lawyer makes a decision about what should happen in your dispute. You can represent yourself or ask someone to represent you. The arbitration can take place very quickly (within 24 hours subject to availability) and you can put your case to the arbitrator by writing a statement, by a telephone ‘hearing’ or by a video call ‘hearing’. The fully reasoned decision will be emailed to you in writing within 48 hours and is legally binding.

 

If you wish to appoint a mediator or arbitrator, or have any questions about the scheme please contact our clerks atBrighton@1cor.com or call on 01273 625625.