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Demystifying Guidance for Separated Parents in the COVID-19 Environment

Adrian Barnett-Thoung-Holland of Coram Chambers considers the COVID-19 crisis and its impact for children law practitioners.

 

Adrian Barnett-Thoung-Holland, barrister Coram Chambers

The current climate of self-isolation, social distancing and minimisation of unnecessary travel or human contact in the wake of the COVID-19 'crisis' naturally provokes serious questions for children law practitioners.

What is the best approach for existing contact arrangements between parties in light of the proposals from the Government? What are the implications for enforcement proceedings?


Core Principles


Before embarking on any analysis, the key principles need to be distilled. The question is this:

'How does the present social environment impact existing Child Arrangements?'

There are three limbs to this question. The first is identifying what circumstances are causing the existing arrangements or orders to be reassessed. The circumstances in which withholding contact should be considered by parties may differ depending on, for example, whether one of the parents is self-isolating or the ; availability of contact centres/third parties for supported or supervised arrangements.

The second consideration is how any policy or guidance in fact affects the status and personality of a Child Arrangements Order presently in place. What rules and methods should lead parties who are faced with these decisions?

The third and final consideration is what actions can a party take in respect of the present social environment. Does it give parties licence to 'breach' orders which are in place? What impact should that have for future enforcement applications, for example?

Before considering each in turn, we remind ourselves of the welfare principles which inform Child Arrangements Orders – the hallowed ground of s.1(3) Children Act 1989 and its 'welfare checklist.' Above all else, the best interests of the child are applied to any and all contact arrangements without question.

We also remind ourselves of the obvious other practice; Child Arrangements Orders are designed to regulate arrangements for children and are designed to be both workable and adhered to; parties are always able to agree alternative arrangements. Enforcement proceedings are used to address breaches or deviations from arrangements which were not agreed. .

For the purposes of this analysis, our default position should be that suspension of any existing contact arrangements should be a last resort in the present environment but should be considered carefully. However, the recent Guidance from the President of the Family Division reminds us of another important factor:

(Para 1): 'Parental Responsibility for a child who is the subject of a Child Arrangements Order made by the Family Court rests with the child's parents and not with the court.'

All decisions belong in the lap of the separated parents to steer arrangements correctly in line with both Government Guidance and the existing arrangements. Practical reasoning is always advised.


Relevant Guidance

In the immediate, there are numerous (and some conflicting) sources of information available which practitioners need to understand and consider when advising clients about existing Child Arrangements Orders. Much of the extensive Government Guidance will be referred to below, but a key document to start with is the recent CAFCASS advice about co-parenting and child arrangements in a global pandemic. This is extremely valuable given the role CAFCASS plays in such proceedings.

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/

The key paragraphs read as follows:

'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 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 feel anxious about the effects of the pandemic,'

'If your household is not in self-isolation, then it is still recommended that you and your child maintain sensible social distancing from members of the public. This means avoiding social activities such as going to restaurants, theatres and cinemas and only using public transport if you really have to,'

'Unless you or your child has an underlying health condition or other vulnerability, transporting them from one home to the other would usually be a legitimate journey,'

From the outset, the advice affirms that which we already know – if there are orders for contact, these have been determined as being in the children's best interests and should take place for fear of enforcement proceedings for breaches. Alternative arrangements can (and should, if possible) be agreed in all circumstances; the first port of call should be proposals for alternative workable arrangements.

The recent guidance (as of 24th March, 2020) from the President of the Family Division as to compliance with Child Arrangements Orders is also required reading.


Circumstances and Guidance

We turn first to the factors which could disrupt any arrangements already in place. The most commonly encountered situation will be 'self-isolation' which has been the pre-eminent preventative measure to combat the COVID-19 pandemic.

The official UK Guidance can be found here.

Assume for starters that we have a situation where a child lives with one parent and spends time on a regular basis with the other. Now assume that one of the parents has now presented with symptoms of COVID-19. The guidance identifies the following:

a. Stay at home for seven days from when the symptoms started.

b. If you live with others and are the first in the household to have symptoms of coronavirus, the other household members must not leave the house for fourteen days.

c. If another household member shows symptoms, the seven day counter resets, regardless of what day they were in the original isolation period.

Consider now the following narrative: the child shows symptoms and isolates for seven days from the first date. The resident parent is isolated for fourteen days from that date. Two days later, the resident parent shows symptoms and further isolates for seven days from Day 3. To be safe, we can be sure that the household is isolated until Day 14 (since the resident parent's seven day isolation concludes within the original fourteen day time frame). 

In our scenario, the non-resident parent has one overnight per week. On that example, two weeks of contact are 'lost': nominally, two overnights. In isolation, those circumstances would not create any significant issue for separated parents; holiday arrangements for example, could cover two week periods. A sensible resolution would be regular indirect contact (if applicable) during the period. 'Make up' contacts for lost periods could apply if available.

However, this scenario is further complicated by Government Guidance arising as of 23rd March, 2020 which promoted the so-called 'lockdown' and increasing pressures on social distancing, which now complicate the seemingly simple issue of suspended contact for a fourteen day period.

In circumstances where a child is to self-isolate, Government Guidance suggests that contact would not be taking place in the seven to fourteen day period but suggests that it could resume after the self-isolation period ends. This applies if the child is not vulnerable (see below) and is either showing symptoms or in a household where symptoms are present. It is hugely unlikely that a parent will be subject to criticism for withholding contact on the basis that a child shows symptoms of the coronavirus or indeed were unwell for any other reason during the fourteen day period.

Here follows a list of scenarios as to how the current climate impacts contact arrangements and some of the scenarios practitioners will need to consider.

a. Scenario 1: Travelling to contact/Contact in public places

Government Guidance on social distancing becomes important when the question of travel by public transport arises or else that contact is expected in the community.

https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults

For reference, the Government definitions of 'social distancing' are defined as follows:

a. Avoid contact with someone who is displaying symptoms of coronavirus (COVID-19). These symptoms include high temperature and/or new and continuous cough

b. Avoid non-essential use of public transport when possible.

c. Work from home, where possible. Your employer should support you to do this. Please refer to employer guidance for more information

d. Avoid large and small gatherings in public spaces, noting that pubs, restaurants, leisure centres and similar venues are currently shut as infections spread easily in closed spaces where people gather together.

e. Avoid gatherings with friends and family. Keep in touch using remote technology such as phone, internet, and social media

f. Use telephone or online services to contact your GP or other essential services

The Government has clarified that the above guidance does not apply to children travelling between parents for contact. .  As of 24th March, 2020, confusing messages from the Government suggested that children should not be travelling to and from contact. At this time, the overriding principles contained within the existing legislation are that fixed contact arrangements are in the child's best interests and should continue as normal. Contact may fall under 'essential' travel for any child where a court has already deemed that contact is beneficial and should take place. However, as the recent Presidential Guidance states (para 4):

'This establishes an exception to the mandatory stay at home requirement; it does not, however, mean that children must be moved between homes. 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.'

The prima facie position is that the contact within the order is in the child's best interests; yet, thereafter it is for the parents to determine (ideally together) whether travelling to contact is in the child's best interests?
The first way to consider this might be through travel time; a short walk across the road for an overnight is unlikely to be impacted in any way at all. A two- hour journey by public transport via Central London (burdened already with its own issues for smaller children) would raise more issues.

Travelling to contact is still an essential use of public transport and if the child is not vulnerable, this ought not to brook any difficulty (as before, contact is in the child's best interests in any event).

Contact in public places is still deemed to be acceptable but 'gatherings' between more than two people have now been restricted – this may not prove to be particularly challenging for a parent in the community without supervision, who ought to be enjoying the contact with the child alone in any event. It would be also facetious to suggest that contact with one parent and multiple children constitutes a 'gathering' which would prevent contact taking place. Given situations where siblings groups have contact between themselves or multiple children have contact with a parent, it would be wrong for children to have isolated contact with a single party in these circumstances. Strict reading of the Government Guidance suggests that this must be the case, but practitioners well know that this may not be a constructive or useful approach. The guidance presupposes that ordinary family gatherings are to be avoided but meaningful, valuable and beneficial contact ought not to be suspended on the basis of the above recommendations as to social isolation alone.

Some modern arrangements identify contact to take place at specific locales; e.g. soft play. Leaving out the question of contact centre availability for now (see below), the social distancing approach prevents contact taking place in many of these locations or they will now be closed. The alternative is for contact arrangements to move into homes but again, if this was already removed as an option for a specific safeguarding reason, then it may not be possible to effect contact.

If contact were supervised in the community and measures are available for contact to take place in homes, then it ought to be rearranged. In the event that there was a specific reason for contact to be in the community (particularly on the basis of safeguarding concerns) and those facilities are no longer available, it stands to reason that contact cannot take place.


b. Scenario 2: One parent (or child) is a vulnerable group

Government Guidance on 'shielding' (the practice of protecting a vulnerable individual) can be found here:

https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19

The advice from the Government in respect of individuals at high risk of severe illness is that such individuals must stay at home at all times and avoid any face-to-face contact for a period of at least twelve weeks. Note that anyone living with the vulnerable party is not required to adopt these protective shielding measures for themselves.

Theoretically, looking at the difference between the proposed timescales as originally read, a vulnerable resident parent might be isolated for twelve weeks but theoretically the child would not be. Strictly speaking, if the child is not in a vulnerable group, they are not subject to the stringent twelve week restriction and could attend direct contact as usual. Therein lie practical problems because if the resident party is isolated as vulnerable and is usually required to convey a child to contact then they will not be able to do so – agreed third parties to convey smaller children to contact would need to be identified. When it comes to teenage children able to convey themselves to contact (or who already do) this should not pose any significant problem.

Theoretically, a vulnerable individual showing symptoms would likely be expected to attend at hospital and in so doing, would likely need to reconsider the Child Arrangements in much the same way as if they were ordinarily unavailable; for example, whether the non-resident parent can care for the child or extended family members.

In the event of a non-resident party needing to isolate for twelve weeks, it stands to reason that direct contact would not take place. The most obvious scenario would be elderly relatives who have specific contact arrangements or Child Arrangements Orders themselves.

If it is the child themselves who are deemed vulnerable, it cannot be right for direct contact to take place if consistent with the guidance. At the very least, it is a proposed twelve week suspension of the contact arrangements. It is, however, very important that the above list of vulnerable qualities are examined in depth; the arrangements can be adjusted depending on who is in fact vulnerable.


c. Scenario 3: Stagnation of Contact Progressions

Many contact orders involve progressions working towards a 'final arrangement' – it is conceivable that the current crisis has caused delays or disruptions to progressions. There are a number of available options, depending on the severity of the circumstances which have caused a need to reassess existing arrangements:

a. Stagnate progression – either maintain an existing workable arrangement before proceeding to progressions which may not be actionable or feasible.

b. Continue progression – in other words, the progressions can still be effected. This must always be considered within the public guidance and the welfare of the child if a progression would expose the child to further risk.

c. Suspension – this will be mostly arise in situations where resources are in fact not available (see 'Contact Centres,' below) and the type of contact is are not available. For example, in cases where the agreed third party agreed is vulnerable and no other parties are available due to self-isolation or the existing arrangement was not safe for the child.


d. Scenario 4: No Contact Orders

The most common situation where contact is not taking place will involve allegations of domestic abuse where the court may be awaiting on a fact-finding hearing. Practitioners are reminded that PD 12J FPR 2010 will still apply in these cases. If a non-resident party was not ordered to have contact due to the application of that Practice Direction, unfortunately the prolonging of proceedings (as it ordinarily wouldn't) cannot change that situation.

As a subsidiary note to this – if contact arrangements adherent to PD12J FPR 2010 were in place to protect a complainant or child and those arrangements cannot be effected (see 'Contact Centres' below), then contact may not be able to take place – the responsibility of PD12J FPR 2010 is quite clear:

Para 25:
Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).

Where the court is considering whether to make an order for interim contact, it should in addition consider –

(a) the arrangements required to ensure, as far as possible, that any risk of harm to the child and the parent who is at any time caring for the child is minimised and that the safety of the child and the parties is secured; and in particular:

(i) whether the contact should be supervised or supported, and if so, where and by whom; and

(ii) the availability of appropriate facilities for that purpose;

(b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and

(c) whether contact will be beneficial for the child.

COVID-19 or not, this is an ordinary application of the law – if no safe arrangements for contact for the child or complainant can take place, then no contact would continue as usual. This extends to contact both professionally supervised/supported or by an agreed third party.


e. Scenario 5: Indirect Contact

Indirect contact should be unaffected when it comes to telephonic communications, depending on the arrangements or circumstances (availability of third party supervisors). There may be some limitations with letterbox style contact (only in respect of a physical aspect of it), but there is nothing to say that indirect contact cannot translate into digital communications instead (by agreement or order).

Handover issues: many contact arrangements are made to minimise acrimony between parties. In general, nothing in the existing guidance suggests that handovers that take place in public should be disrupted, though the two metre distancing may still be relevant.


f. Scenario 6: Availability of Contact Centres and Resources


Some resources, particularly contact centres, are now being closed and are not presently available. This presents obvious disruptions to contact. A decision needs to be made looking at all the relevant factors when contact was ordered at a contact centre and the following questions are relevant before considering alternatives:

a. Why was the contact centre the preferred method of supervision?: if the reasoning was very specific and alternative agreement is simply not available (allegations of domestic abuse, need for professional supervision to protect the child during contact; indirect contact was not deemed appropriate), then there may be no scope of adjust the arrangements. As mentioned previously, in circumstances where PD 12J FPR 2010 applies, alternatives may simply not be possible.

b. Why was the contact centre the preferred locale? Remember that unsupervised handovers sometimes take place at contact centres to protect complainants in domestic abuse cases, so the precondition of contact involving a contact centre need not always rely on the centre for supervision. Alternative arrangements should be suggested, though the paucity of public locales may impinge on this.

c. Is supervision required by a third party? If the third party is not available, there should always be scope to agree alternatives given the circumstances. It is perhaps unhelpful that many Child Arrangements Order have been drafted with specific agreed supervisors in mind but third parties should be available to assist. If not and contact was ordered to be supervised, then it cannot be in the child's best interests to adjust that.


Prospective Actions

With all these factors considered, what achievable options are there? Above all else, we turn again to the succinct wording of the President of the Family Division:

6. 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 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.

7. Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, 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, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The clear line is this:; parties must be invited to make arrangements and in absence of such agreement, must take action within their parental responsibility. The question occupying practitioners will be of enforcement but paragraph 6 above is most likely to assist in respect of that, at least on the issue of prospects.

There is little to no case law in respect of 'Acts of God' (for want of a better description) impinging on contact arrangements. Many such points are heard daily in the courts – children and parents miss contact by virtue of being unwell, travel issues, adverse weather conditions etc. and they are rarely viewed as unreasonable 'breaches' of existing Child Arrangements Orders. In all circumstances, parents are to exercise their parental responsibility as appropriate. Few courts will accept that it was unreasonable for contact to take place when a child was seriously ill. Practitioners asked to advise about enforcement proceedings where the other parent or the child is vulnerable and adhering to the current form of Guidance (which, we remind ourselves, is always subject to change) need to look realistically at the costs and prospects of such applications and indeed the timescales for any litigation to actually take place.


Practical Advice for Practitioners

Even as the writer has been undertaking this article, guidance is still forthcoming and new examples of complications are always ready to rear their heads. This article is neither guidance nor advice; it is a summary and a mode of analysis to implement when faced with the inevitable consequences of a COVID-19 future.

However, the suggested analysis is as follows:

a. What circumstances, foreseeable or otherwise, could impact on existing Child Arrangements?

b. What guidance is available in deciding what measures to take?

c. What available opportunities are these to make alternative arrangements?

This approach can assist practitioners in approaching the present situation and resolutions. The law still will prefer that suspension of contact is a last resort, save where there are health concerns of a child or parent (and this itself is not unusual even in the circumstances).

A question has arisen which, in the author's belief, has been somewhat awkwardly managed by the courts; these are the (mostly) interim arrangements which are at this very moment finding themselves enshrined in orders (either during remote hearings or via consent orders). At time of writing, final orders are unlikely to be being made at final hearings by the court, though agreed arrangements are still a potential.

There should, it is suggested, be some provision for those orders to be prepared for the possibility of disruptions to contact ab initio rather than setting the children up for disappointment later on. Practitioners are encouraged to consider the following when discussing consent orders for interim or final child arrangements as consistent with much of the current guidance.

a. Reciting agreement that the parties will have to be flexible as the COVID-19 situation develops if contact arrangements are future jeopardised. Note that while this cannot undermine the court's jurisdiction to make enforcement orders, it is right that the recitals assist in clarifying the circumstances we are presently in.

b. Increased and specific directions as to indirect contact: as the 'ugly duckling' of some contact arrangements due to the efficacy of communications, practitioners are invited to 'sure up' and clarify indirect contact arrangements (either as a contingency for failures in direct contact or else as arrangements per se). In light of social distancing and self-isolation measure, telephonic communications and arrangements are already improving but parties must be considering the possibilities of indirect contact to replace cancelled direct contact arrangements if these are not possible. More and more options are becoming available and these need to be explored just as rigorously as direct contact methods. 

c. The default position in general should not be to suspend contact arrangements: as above, indirect measures should assuredly be put into place and for the parties to reach agreement wherever possible.

Note that given the fascinating and rapidly changing landscape, there will certainly be adjustments to whatever guidance has been analysed here; this article is intended only to promote an approach to considering these issues and does not constitute as formal guidance in any way.