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Separated Parents and Covid-19: Child arrangements in quarantine times

Lindsay Yateman and Naomi Lelliott, solicitors with Excello Law, discuss how separated parents can best manage child arrangements under the current lockdown requirements.

 

Lindsay Yateman and Naomi Lelliott, solicitors Excello Law.


Dominic Cummings' now infamous road trip to Durham recently saw the nation wrangle with the rights and wrongs of how parents should manage childcare during the coronavirus pandemic. Yet Mr Cummings' travails seem small by comparison to the complexities faced by many parents raising children within separated families at present.

While managing contact arrangements is never easy, the added dimension of the coronavirus pandemic has created additional uncertainty, while also raising the potential for conflict between parents. Even as the lockdown measures are gradually lifted, separated parents all across the UK are searching for guidance as to how best to manage access to children between different households. As a result, family lawyers have had to become conversant with the latest social distancing rules and guidance in order to more accurately advise their clients.

Some parents are concerned about how their access rights are being impacted by the social distancing measures. Others are worried about the health risks of allowing a child to stay in another household – particularly if they also live with an elderly relative or vulnerable person. Some have already felt the economic impact of the lockdown and fear that maintenance payments will be adversely affected as the recession deepens. In our increasingly anxious post-coronavirus world, such uncertainties have inevitably generated friction, leading some parents to ask whether it really is possible to co-parent with your ex-partner at all.

We have also now entered a somewhat unusual situation where, even within the United Kingdom, "cross-border" issues may arise. For example, when the stay-at-home guidance was first lifted for England, that was not the case in Scotland, Wales or Northern Ireland. In cases where one parent lives in Scotland, and the other in England, each will be subject to different social distancing rules. Parents living across the Scottish or Welsh borders therefore have two divergent sets of rules to contend with.

These rules are complex and ever-evolving. Even something as simple as taking a child to play football in the park with friends can end up being a legalistic nightmare. For example, at the time of writing, people in England may exercise outdoors with up to five others from different households. In Wales, any number of people from two households may socialise. Meanwhile in Scotland, people from two households may exercise outside together, with an upper limit of eight. Of course, in all cases, people should stay two metres apart and practise good hygiene. For those left bereft by the cancellation of Wimbledon this year, playing tennis is currently permitted in England, but not across the border in Wales.

Parents taking a child for a trip to the beach also have more limited options in Wales and Scotland, where families are advised not to travel more than five miles, while there is no such geographic restriction in England.

Even within England, while schools opened in many areas on 1 June 2020, they remain closed in others. Schools in Scotland are set to remain closed until August, and then they will resume on a part-time basis, with a blend of classroom education and schooling at home. Since the devolved governments and councils hold widely varying views as to the propriety of returning children to school, it is no surprise that many parents will also hold differing views as to whether it is currently safe for their children to return to the classroom. One parent may take the view that continuing home-schooling until the end of term is the safest option, while another may fear that the child is falling behind in their education. Both views are perfectly reasonable and supportable by evidence.

Anecdotally, it also appears that the nationwide enforced experiment in home-schooling has led at least some parents to the conclusion that their children are doing better in the home-school environment than they were in a formal school environment. Some are therefore now considering home-schooling their children permanently. Once again, we see that the pandemic has created new and fertile ground for potential disagreements between separated parents.

The current trend towards the loosening of restrictions is not set in stone, of course. As the pandemic progresses, it may well be that stricter restrictions could be re-imposed where further outbreaks occur. Some epidemiologists are particularly concerned about a second peak of the pandemic later this year as we head into winter. Given this risk, the advice of the President of the Family Division, Sir Andrew McFarlane will continue to provide welcome clarity.

Last March, Sir Andrew issued guidance on the social distancing rules contact arrangements for separated families as they applied during the strictest phase of the lockdown. This guidance assured practitioners and parents alike that children may move between homes, where it is safe to do so, while having consideration for the current public health rules and guidance. The guidance states unequivocally: "Where parents do not live in the same household, children under 18 can be moved between their parents' homes."

While this guidance established a clear exception to the government's "stay at home" requirement, it is not the case that children must be moved between parental homes. Even in the context of today's more relaxed rules, the decision as to whether a child should move between households is ultimately for the child's parents to take. In so doing, they should of course sensibly assess the broader circumstances, including the child's present health, the risk of infection in the area, and the presence of any recognised vulnerable individuals in either household.

In practice, this means that parents should generally be advised to continue to comply with a Child Arrangements Order (CAO) – provided that no one in either household shows signs of having contracted Covid-19 and once so doing does not create any unnecessary risks for vulnerable persons.

If clients are in doubt about whether they should be concerned about particular symptoms, the NHS operates an online coronavirus symptom checker which provides a quick and easy way of assessing them. The NHS guidance remains that anyone with symptoms must self-isolate for seven days. Anyone who lives with a symptomatic person must also self-isolate for 14 days from when the affected person developed symptoms.

The NHS says that self-isolation means not leaving the home and also not having visitors, "including friends and family – except for people providing essential care". Therefore, self-isolation will require a hiatus in contact during that period. An arguable exception to this rule could possibly apply in cases where the scheduled contact also involves the provision of essential care.

Where one parent lives outside the UK, or where a child does, the government's new 14 day quarantine requirement for overseas visitors may have a significant impact. From 8 June 2020, new arrivals in the UK have been required to go straight to a place where they will self-isolate and not leave that place for 14 days. The government guidance states that, during this period, such persons "cannot have visitors, including friends and family, unless they are providing essential care." Those who fail to provide details of their place of self-isolation upon entering the UK will face fines of £100, and those who flout the quarantine requirement face a fine of £1,000 in England and Wales.

This requirement therefore appears to mean that a parent coming from overseas to spend time with a child within the UK would have to isolate for 14 days before meeting them, unless isolating within the child's home. Even in that case, the person is required to "avoid contact with the people you're staying with and minimise the time you spend in shared areas".

There are listed exceptions for leaving the place of quarantine for medical care where "you're going to the funeral of a close relative, or for other compassionate reasons". It is unclear that spending time with children would be covered by the catch-all phrase, "other compassionate reasons". The guidance also wisely permits people to leave the place of quarantine if, for example, "there's a fire at the place you're staying".

The 14-day quarantine requirement does not apply to visitors from Ireland, the Channel Islands or the Isle of Man.


Practical considerations 

Sir Andrew McFarlane's guidance reminds parents of separated children that parental responsibility lies with them, not with the court. In practice, this means that where the normal arrangements are disrupted, parents should be advised to discuss matters constructively with the aim of agreeing a solution that works for everyone. For example, where the coronavirus restrictions cause the letter of a court order to be varied, clients should be advised to keep to the spirit of the order by making safe alternative arrangements for the child. This might, for example, involve a video call between the parent and child in lieu of meeting in person. This approach is in line with the guidelines, which state that if actual contact is stopped, alternative ways of ensuring the children are able to maintain a relationship with the other parent should be considered.

Some families, by virtue of the litigation they are involved in, are unable to agree on what their children should eat for dinner – let alone what is best for them during a national crisis. Inevitably, in such cases, additional problems may unfortunately arise due to the existing parental conflict.

If a client has tried to communicate with the other parent but cannot agree a way forward amicably, then ultimately, if they have sufficiently reasonable grounds for concern that for the child to move would be against the current public health advice, they may need to exercise their parental responsibility and vary the arrangement to one they consider safe.


Child arrangements orders

When the CAO states that a child has to spend time with the other parent, and a client who has parental responsibility feels that public health advice requires them to vary the arrangement then they may do so. If their actions are subsequently challenged by the other parent and questioned by the court they must be able to show that they acted reasonably and sensibly in light of official advice and regulations.

If there is no CAO and the other side is denying access, the guidance remains that, wherever possible, clients should try to discuss matters with the other parent to see whether  they can find a way forward safely and positively. Should a client be prevented from seeing their child for a period of time and they feel this is unjustified, it may be necessary to make a Child Arrangements Application to the court to regulate the time. Consideration should also be given to other forms of dispute resolution, such as mediation, arbitration or collaborative law.

Should the parent with whom the child lives say that the child is exhibiting symptoms of Covid-19, the self-isolation period should be observed, but following that the child would then be free to see the other parent. During the self-isolation period, the parent with whom the child lives with should allow other forms of indirect contact: regular Facetime, telephone calls or Skype.


Negotiating change

As practitioners, we can assist clients and their families in this difficult time by advising them to take a flexible and pragmatic approach. It can be wise to invite clients to put themselves in the other parent's shoes. Even if it is right for the safety of the family and the general public, it is still hard for any parent to be separated from their child.

It may be prudent to suggest offering some additional time at a later date, or stopping short contact sessions and replacing them with video calls to minimise the amount of travel and exposure for the child and others within their life.

If one parent prevents contact without negotiation, the other parent may well apply to the court to enforce the order. The judge will have to decide if the decision was reasonable in all the circumstances. Most family court hearings are happening remotely however a swift decision is unlikely. As with so many other issues, there is no right or simple solution. It is about what works for each family, ensuring the safety of everyone.

This is an extremely difficult time for everyone. Our paramount concern must be the safety and welfare of any children involved, as well as our clients and those around them. The fallout from the pandemic has heaped additional stress on clients and their families. As family law practitioners, we can contribute to reducing this stress by working collaboratively and encouraging our clients to take a safe, pragmatic and understanding approach during this extraordinary event. That can perhaps be our small contribution to the wider national effort.

10/6/20