The Government has announced strict measures for the UK to try and stop the spread of coronavirus. These measures are effective immediately. The Government will look again at these measures in three weeks, and relax them if the evidence shows this is possible.
The guidance prepared by the Government has made it clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.
The President of the Family Division has advised that the decision whether children are to move between parental homes is for the children’s parents to make after a sensible assessment of the circumstances, including the children’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or another.
So what does this mean for separated parents?
In this guide we will look at the impact on separated parents of nursery and school closures, social distancing, the situation if a child or a parent becomes ill, what happens if there is a court order about child arrangements in place, the situation with contact centres, court hearings, travelling with children, early stages of separation and tips on coping.
For many separated parents, whether they are living in two separate homes, or separately under the same roof, agreeing the arrangements for their children can be difficult. Often parents, understandably, feel emotions about the ending of their adult relationship which impact on their ability to communicate and come to an agreement about their children. At times of stress, discussions about these arrangements can be even harder. There is no doubt that the coronavirus, and the measures put in place to try and stop the spread of the virus, are placing a huge strain on everyone, including families, and present new challenges for separated parents.
This guide applies in cases in which children and young people are safe spending time with the other parent. If there has been domestic abuse, or the child or one or both parents is particularly vulnerable for some other reason, the provisions of this guide will not apply in the same way, and we would recommend that the parents take legal advice if possible.
Nursery and school closures
Agreements usually involve children spending time with parents when they are not in nursery or at school. Arrangements are often divided into term time and school holiday periods. So what now? Nurseries and schools are closed (for all but the children of key workers) and suddenly children's days and weeks look very different. It may well be that the agreement previously reached is no longer appropriate.
Discussions between parents usually should be on the basis that, unless there is a good reason to the contrary, it is in the best interests of children to have both parents involved in their life. Any agreement that parents reach about the arrangements for the children should be based on that premise. Unless there are justified medical grounds (as explained below), the status quo should continue. If children have been spending time with both parents then they should continue to do so, provided always that it is safe for them to do so and provided that it is in line with the most recent Government guidance.
Ideally parents will be able to agree a variation to the arrangements for the period when nurseries and schools are closed. Working parents, who are not key workers, may have to juggle childcare with work and it may be that children can rotate between parents’ homes depending on work commitments.
If an agreement cannot be reached, then for parents who are able to communicate to an extent, virtual mediation is an option. A trained mediator can help parents to negotiate and come to an agreement. Mediations can be conducted remotely and by secure video call. At Mills and Reeve we have 14 specialist family mediators, all of whom can meet with clients virtually, wherever they are based. We can also meet with the children or young people as well if appropriate.
If an agreement cannot be reached this way then we would recommend instructing a specialist family solicitor to advise and to help parents come to an agreement. At Mills and Reeve we are all able to work remotely so that we continue to meet clients’ needs.
If an agreement is still not possible, then it is worth considering virtual arbitration (in effect, a private court). The children arbitrator will adjudicate the dispute between parents. This is quicker and can be less expensive than making an application to the court. Mills and Reeve have financial and children arbitrators, and so can adjudicate children matters and provide certainty for clients in these uncertain times.
Although it is open to either party to make an application to the court and ask the Judge to make a decision about the arrangements for the children, this should be a last resort. The court system is under considerable pressure with arrangements being made to enable hearings to take place by telephone or video call, and the court video conferencing system not yet available.
The latest Government guidance makes it clear that the four reasons to leave home are exceptions - even when doing these activities, people should be minimising time spent outside of the home and ensuring that they are two metres apart from anyone outside of their household.
Issues which parents may have previously had about interpretations of what social distancing means may well be redundant now that the latest guidance is in place. As measures become stricter there is, perhaps, less room for interpretation. Parents should consider the Government guidance and act accordingly.
What if a child or a parent becomes ill?
Parents should follow Government advice. If a parent or child has symptoms of coronavirus (a high temperature or a new, continuous cough), however mild, then they must stay at home and self-isolate for 7 days from when these symptoms first started. All other members of the household must self-isolate for 14 days.
If a household is self-isolating in these circumstances then the children should not leave the house, not even to spend time with the other parent. Equally if the other parent is self-isolating then they should not have contact with their children who live separately from them.
It is worth bearing in mind that parents usually both have parental responsibility. If parents are married, or if a child was born after 1 December 2003 and the father is named on the birth certificate, then both parents have parental responsibility. Parental responsibility reflects the rights, duties, obligations and responsibilities which each parent has in respect of their children. In most situations each parent can exercise their parental responsibility individually, but if they cannot agree then the court can step in.
What this means in practice is that parents should communicate about their children’s health if at all possible. If it is not possible for children to physically spend time with the other parent then parents should agree alternative ways of connecting. For example, meaningful telephone and video contact. In addition it may be appropriate for children to spend more time with the other parent as soon as possible following the end of self-isolation: to 'make up' the time that has been missed.
There will, no doubt, be parents who are concerned that one parent is using self-isolation as an excuse not to let children spend time with the other parent, and some parents will use self-isolation in this way. Taking such steps is likely to be detrimental for the children concerned and may well backfire – either in the very near future or later in life. One of the most damaging things for children is parental conflict, and it is highly likely that taking such steps will expose them to a great level of parental conflict. If parents think that this is an issue then they should keep a record of requests made and excuses given. Although proving that self-isolation has been used in this way will be tricky, it is likely that that parent has done other similar things that demonstrate that they are putting their own needs, or their wish to punish or hurt the other parent before the needs and welfare of their children.
What about if there is a Court Order for contact in place?
Child arrangement orders are binding on both parents and should be followed. If an order is not followed then one parent can make an application to the court to enforce that order. Where a court is satisfied that a person has failed to comply with an order, it has a wide range of powers. The court can vary the order (which can include a reversal of the children’s living arrangements) or even fines and committal to prison, although in reality enforcing an order due to allegedly false self-isolation will be difficult for several reasons.
There may be circumstances where, temporarily, a child arrangements order cannot be complied with. For example, because a child is showing symptoms of coronavirus and is, therefore, having to self-isolate. Parents should be led by Government advice on self-isolation.
In these circumstances, if parents cannot comply with a child arrangements order then this should be dealt with in a measured way. Parents should communicate and try and agree a temporary alternative arrangement. For example, meaningful telephone and video contact and plans to ‘make up’ the time at a later date.
Again, if an agreement cannot be reached directly between parents then they should consider virtual mediation, solicitor assistance and arbitration as suggested above.
For some parents they would have been spending time with their children in a contact centre. Some of these centres have now closed. Others are still offering services to children of key workers and may also provide services for particularly vulnerable people. Parents should contact the contact centre (or their solicitor, Cafcass or social worker if they have existing involvement in the contact sessions) to find out what, if any services, they are still running. Some centres are looking at alternative ways to ensure that children are able to spend time with a parent, in some capacity.
If physical contact sessions cannot go ahead and one parent will not see their children for a period of time until contact centre sessions resume, then parents may wish to communicate with each other and try and agree a temporary alternative arrangement, if it is safe to do so and in the best interests of the children. For example, meaningful telephone and video contact.
The guidance is that all family court hearings should be conducted remotely via email, telephone, video or via other digital communication platforms unless the requirements of fairness and justice require a face to face hearing. If a case requires a face to face hearing then the court should endeavour to conduct such a hearing in a way which would minimise the opportunity for infection.
Enabling hearings to be carried out remotely is a huge task for the courts, especially where both parties are acting in person, without legal representatives who may, more easily, have access to remote ways of working. Hearings in the next few weeks are being adjourned and / or arrangements are being made so that they take place via telephone or video link.
If you have a court hearing in the next few weeks then you should speak to your solicitor, if you have one about whether this hearing can take place remotely. Many solicitors’ firms and barristers’ chambers will have the technology to conduct hearings remotely. If you do not have a solicitor then you should speak to the court. If you do not have the ability to access your hearing remotely then you should make this clear to the court staff.
Travel with children
If a parent wishes to take their children out of the country (England and Wales) then they must first seek the consent of everyone who has parental responsibility for the children, unless there is a “living with” child arrangements in place, If that is the case, then usually that parent may take the children out of the jurisdiction for 30 days. However, the latest Government guidance is that people should only leave their house for one of four reasons. A holiday is not one of these reasons. These measures are in place for the next three weeks at least.
The Foreign & Commonwealth Office issued advice on 17 March advising against all non-essential travel overseas. This advice took effect on 17 March and applied initially for a period of 30 days. A holiday is non-essential travel.
Government advice is to contact the airline, travel company, cruise line or other transport and accommodation provider and get in touch with insurance providers if changes need to be made or travel plans cancelled. Travel services have been severely curtailed.
It is unclear what the position will be in three weeks’ time. It may be that the latest Government guidance is extended.
There may be some parents who wish to return to their home country with the children. In these circumstances both parents need to think carefully about whether this is in the children’s best interests and the impact on the children spending time with the remaining parent if a move takes place. If a move does take place this could have far reaching consequences in terms of where a child is based and a parent should seek specialist legal advice before agreeing to a move and/or if they are at all concerned that a parent might take the children out of the country without their consent. Whilst it will be much more difficult for one parent to abduct a child overseas currently, clearly it is still possible.
Early stages of separation
Some parents will be at a very early stage of separation. They might not have physically separated. The latest Government guidance and self-isolation are likely to put considerable pressure on a family in these circumstances. Parents might find that online counselling is beneficial, either to help them to reconnect with each other and work on issues within their relationship, or cope with how to separate in the best possible way.
Tips on coping for separated parents
These are worrying times for separated parents. More so than ever, parents should prioritise communication (as far as is safe to do so) to try and find the best way forward for their children in these unusual circumstances.
Where possible, parents should:
- Try and communicate with each other respectfully and positively if at all possible, and try not to communicate at all if that isn’t possible. It is important to ensure that children are not involved in any discussions about adult issues (particularly now that they are likely to be in the home when conversations take place). Children should be shielded from any disagreement between parents and should not be spoken to about the other parent in a way which is derogatory or negative. Unresolved, persistent and significant parental conflict can have far-reaching consequences for children and young people throughout the rest of their lives. Parents often find that completing a parenting plan can be helpful.
- Take heed of Government advice and use this to help inform discussions and reach agreements. Information should be shared between parents and, where appropriate, parents should work collaboratively. The current Government advice is clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes. This should be remembered, together with the premise that, unless there is a good reason to the contrary, it is in the best interests of children to have both parents involved in their life. The decision whether children are to move between parental homes is for the children’s parents to make after a sensible assessment of the circumstances, including the children’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or another.
- Try to be flexible, given the unprecedented change of circumstances. Keep a record of communication and any changes to arrangements and orders.
- Look after themselves. If a parent is happy and healthy they will be in a better position to care for their children as well as communicate with the other parent. It is understandably a challenging time for all; parents might be worried about their own parents, about juggling work and childcare, about the impact on their children of no school and nursery and about developing symptoms of the virus. Stay connected with friends and family through video and telephone calls. Enjoy the small things – spending more time with your children, having a long hot bath, reading a book, watching your favourite TV series. Try your best for your children and expect that the other parent is also trying their best. Having different parenting styles is very normal, and doesn’t mean that the other parent’s style is wrong, provided the children are safe. Children are very adaptable and resilient.
- Be understanding of your children if their behaviour changes. Just like parents, children are having to adapt to their new ‘normal’ in which their nurseries and schools are closed and where they are largely confined to their homes. This is a big shift for children and it is understandable that they might be anxious, frustrated and frightened. The World Health Organisation, amongst others, has prepared support and guidance on how to talk to children about Covid19.