Child arrangements in separated families in the COVID-19 pandemic: Gemma Lindfield & Maria Scotland

At 8:30 PM on the evening of Monday the 23^rd March 2020, Prime Minister Boris Johnson addressed the nation and told us:

“I am giving the British people the simple instruction: you must stay home”.

He then went on to set out the strict exceptions to this rule, whereby the British people (including children) will be no longer be permitted to go outside of their home except to carry out essential shopping, daily exercise, attend to medical needs or attend essential work. He punctuated his speech forcefully with “and that is all”. He then warned us that if we do not follow the rules the Police have the powers to enforce this (isolation/ “lockdown”) including fines. Better details of the government rules, the so “Staying at Home and away from Others’ rules are found here.

The big question for many families, in particular those separated families with children, of course is what is the effect of the Stay at Home Rule on separated families and those who have hitherto been subject to a Child Arrangement Order (“live with/ spend time with orders”) or parenting plan, or even a care plan providing for contact between children and parents?

Government Advice on Child Arrangements in separated families:

The answer came this morning at 8:00 AM (that is Tuesday the 24^th March 2020 as I write) when senior government Minister Michael Gove appeared on the breakfast and BBC news and assured parents and carers that the exceptions to the new government-imposed home isolation do extend to permitting children to move between their parents, where they are separated. He was asked “Can divorced or separated parents still share children” and he told the reporter that:

“the key thing is that if you want children to still see each other they can… I was not sufficiently clear before: children under 18 can still see both parents”. Thereafter there swiftly followed an amendment to the government’s stay at home rules setting out “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

Advice and guidance from Cafcass:

Cafcass published some very useful guidance on the 20^th March 2020. For a moment last night this guidance looked like it may be out of date, given that the Prime Minister told us we were only permitted to leave the house for food, medical supplies and exercise, however following Michael Gove’s advice on the BBC this morning this guidance now appears relevant and useful once again. Cafcass advise parents with child arrangements to do the following:

• Children should maintain their usual routine of spending time with each of their parents. If there is a Child Arrangements Order in place this should be complied with unless to do so would put your child, or others at risk. This 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.
• If you're not able to maintain your child's routine due to illness or self-isolation, or non- availability of people who ordinarily support your child’s contact, then communicate clearly and honestly with your co-parent. If it is not safe for you to communicate directly
  (for example, if there has been a history of domestic abuse) then consider using a trusted third party to help you.
• If any court directed spending time arrangements are missed, think about how you and your co- parent may be able to ‘make up’ your child’s time after the restrictions are lifted. Remember, any rearranged spending time arrangements should always be for your child’s benefit and should not be used as a source of tension or conflict – especially at a time when your child is likely to be feeling anxious about the effects of the pandemic.

Venue for contact:

The problem with what Gove said this morning on the issue of separated parenting is it presupposes that parents are spending time with their children in their homes. It is suggestive of an easy handover from one parent to the next. As family practitioners, we know that arrangements are not always this simple. There are good reasons why some children are spending time with their parents in a supervised or a supported setting. Additionally, some handovers take place at a public venue with CCTV.  

We are aware that in the week of the 16^th March 2020, some London based contact centres had taken the difficult decision to close, aside from to facilitate handovers for contact that is taking place in the community. In one case, the centre will be opening fortnightly for 2 hours for the purpose of handovers. That, of course, may still change in the light of the prime minister’s address last night. In the circumstances where community contact cannot now take place at a public venue, such as a soft play centre, leisure centre, etc where will parents spend time with their children? If the court has concluded that the contact may not take place at a parent’s home for whatever reason, then this will pose challenges. It may mean that direct contact might not be able to take place safely until the government advice on leaving our homes changes.

Child Arrangement Orders:

In light of the issues above there is a real possibility that abusive parents may place pressure on the other parent to adhere to court arrangement orders (“CAO”s) that are simply not safe for the child or children involved due to the current crisis. Furthermore, they may try to coerce the other parent to agree to alternative arrangements that the court and CAFCASS may not have considered safe when the order was made, for example moving to contact in the community when there are very good welfare reasons why the contact is supported or supervised. We will all be trying to find novel ways to deal with the crisis but we must not do so in a way that would expose children to risk. This could be a sustained risk if the child or children are stuck in a parent’s care due to a sudden development in the national situation. This must also be borne in mind when considering any “work-around” arrangements. 

In respect of new orders that are being made by remote courts during this time of national crisis it may be useful to add a clause to address the current situation. For example, that contact is subject to government advice or measure taken in the exceptional circumstances of the current national public health emergency arising from the global Covid-19 pandemic. This is because we do not know how long these measures may be in force for and additionally there is suggestion that they may be intermittent. This will prevent unnecessary applications for breach of an order arising from the current governmental measures. 

Guidance from the President of the Family Court:

*The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice issued some guidance following the amendment to the Stay at Home Rules regarding moving children between homes on the 24^th March 2020 and accordingly this article has been amended to reflect his guidance. The President advises parents of the following –

1. Parental responsibility for a child rests with the parents, not the court.
2. Parents must abide with the ‘Stay at Home Rules’.
3. The Stay at Home Rules are clear: it is no longer permitted for a person, including a child, to be outside for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
4. An exception to this rule is “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
   This is an exception and does not mean children must be moved between homes. The decision to move between parental homes is for parents to make after a sensible assessment of:
   • the child’s health,
   • the risks of infection and
   • whether there are vulnerable individuals in either home.
5. Parents are advised to communicate about their worries and reach practical solutions.
6. Where parents agree that the CAO should be temporarily varied, they are free to do so. It would be sensible for each parent to record this agreement in a note, email or text message sent to each other.
7. Where one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each 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.
8. Where one parent varies the CAO to deprive the other of direct contact with the child the courts will expect alternative arrangements to be made to maintain regular contact, for example by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The Remote Family Court:

The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child. Where there are intractable disputes remember that the family court IS OPEN and operating remotely. Whilst the judiciary concede that there are teething issues with the family court transferring wholesale to a remote court due to technology all cases so far as possible are still being undertaken by telephone, video link or emails.

The Family Team at 5SAH have already been instructed in and undertaken several successful children cases in the last few days since the family court moved to remote operation, both in the public and private sector, in just the last few days. Our clerks were swift in contacting the courts and all parties in each case and making all necessary arrangements to permit each case to be heard as listed by remote access and ensured all parties and Counsel had access to the papers by pdf/ e-bundles. We are all still working at full tilt remotely from home and available to assist our professional and lay clients in these difficult times to successfully continue to co-parent and, if necessary, continue to access the family court system to ensure continued co-parenting by court orders. We wish everyone good health and make you aware we are here to help with all family related issues.

Maria Scotland & Gemma Lindfield                                                         

Accurate on the 23^rd March 2020 and *Amended on the 25^th March 2020

Maria is the joint head of the Family Team at 5SAH and practices exclusively in family law with a specialism in high end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.

Gemma is an experienced family law barrister and is regularly instructed in all aspects of family law. Gemma is ranked in Chambers & Partners and the Legal 500 for her international and extradition work, which often overlaps into her family work.

To discuss your case further with our dedicated family clerks, their full contact details are below. We operate a fully remote service, which can be tailored to suit individual needs.