Child arrangements in lockdown
There are unlikely to be many families who were disappointed to see the end of 2020.
Many people seemed to be optimistic about matters improving in 2021 and putting the misery of the unprecedented past year behind them. Sadly, however, the optimism many people felt may have subsided by now in the light of rising numbers of COVID-19 infections, new variants of the virus and a further lockdown in both England and Wales. The last straw is perhaps the closure of schools, forcing most parents to assume the role of teaching their children often whilst trying to juggle working themselves.
Every family is therefore likely to find the current situation very difficult indeed. Some separated parents face additional problems as they seek to agree changes with the other parent or where the other parent has imposed changes without consultation or agreement.
The Existing Rules
The rules and guidance have consistently remained the same since last March and, in theory at least, are very clear. Under all level of restrictions there have been exemptions for children of separated parents to allow them to spend time with both their parents, regardless of geographical location or different tier rules. In practice, however, things are not so straightforward. Whilst the guidance says children ‘can’ travel to spend time with both parents it does not go as far as to say that they ‘must’ or ‘should’ do so. As so much is left to individual discretion it is inevitable that parents are going to have differing views about interpreting the guidance and what it means in practice.
As with all aspects of the lockdown guidance, the public is asked to adhere it to whilst being mindful of the situation in the country as a whole and the risks everyone faces in their day to day life. Inevitably, this means that some parents are going to use the existence of a further lockdown to justify children not moving between homes. In some cases, this will be agreed by all parties if there is a clear and obvious risk to health. For other families, any change to existing or planned arrangements will be disputed based on differing tolerances towards risk. Sadly, there will be some cases where the guidance is used deliberately to prevent contact with another parent.
Since the beginning of the pandemic, family lawyers have been consulted by parents who have had the arrangements for their child – whether longstanding or contained in a Court Order – suddenly disrupted or even totally disregarded. For some families, the changes, although regrettable, may have been justified and agreed but in many other cases the changes had been imposed by one party without the other’s agreement. Some parents have found themselves disagreeing on the level of risk created by moving between households and whether the benefit outweighs the risk. Others report a concerning regularity of the sudden onset of alleged symptoms in the days before a child was supposed to be spending time with them.
It can be very difficult to determine whether the motivation behind any disruption to existing child arrangements is genuine, particularly for someone emotionally involved in the situation. Some parents may not recognise or accept a different assessment of risk, even if that concern is genuinely held. In other cases, one parent may be adamant that the other is exaggerating health concerns simply to reduce or prevent contact, perhaps as part of a wider campaign of parental alienation. If it is the child saying they do not think it safe to see one of their parents, there may need to be an assessment of the reasoning behind this and parents may disagree on the extent to which the child’s views should influence the arrangements.
What about existing Court Orders?
An issue that parents and legal practitioners alike are having to grapple with is the status of Court Orders in these extraordinary and unprecedented times. A Court Order will still apply so parties should comply with any existing Order if it is safe to do so. Any failure to adhere to the terms of an Order is a technical breach. However, a breach can be justified if there is a ‘reasonable excuse’. Any application to enforce an Order at this time therefore must be considered very carefully, as genuine concerns about health or risk to a child will very likely fall within the scope of a ‘reasonable excuse’. This is emphasised in the statement released by the President of the Family Division in March 2020 which confirms that a parent who is concerned that adhering to the arrangements would be unsafe can temporarily vary the terms on the basis of guidance in place at the time. Alternative measures would be expected to be put in place, e.g. video calls or, if that is not possible, telephone calls, to ensure regular contact is maintained.
On the face of it therefore, parents may assume that there is unlikely to be any repercussion from changing the arrangements and relying on the guidance and advice from the government and Public Health England/ Wales. However, that is not necessarily the case and a Court could be asked after the event to consider whether the parents had acted reasonably and sensibly in light of the various rules in place at the time. The Court’s paramount consideration is always the welfare of the child. A judge dealing with any application will therefore have to undertake the difficult and subjective exercise of weighing up the likely benefits of the child spending time with both parents against the risks of doing so during the pandemic.
How we can help
The issues outlined above demonstrate that lockdown has potential added complications for separated parents and their children. It will have come as a shock to many that they may no longer be able to rely on the terms of a Court Order, particularly if it had been a drawn out and expensive exercise to obtain the Order in the first place. The guidance from the President assumes that parents can and will speak to each other to voice their concerns and agree a ‘good, practical solution’. Sadly, many separated parents feel unable to have direct discussions or negotiations with the other parent. In cases where that has been domestic abuse between the parents this may not be advisable in any case, or even permitted in law if protective orders are in place. As family lawyers we can help in those negotiations to address concerns or to put sensible alternative measures in place if it is agreed that existing arrangements could be unsafe.
There are also other solutions for dissatisfied parents, and it is certainly not the case that any changes need to be accepted without any discussion. Anyone concerned about child arrangements during lockdown should therefore seek advice at the earliest opportunity. Our highly experienced team will be able to advise clients on their position and the options that exist to resolve the issues, which may include mediation or arbitration, as well as a Court application.
The family team at Clarke Willmott are members of Resolution, the national body of family lawyers committed to dealing with disputes constructively. We take this approach wherever possible, including when advising in relation to child arrangements.