In view of the impact Corona Virus is having on Family life, and in particular where there are Court Child Arrangements Orders, the President of the Family Division has issued guidance on compliance with the Family Court’s Child Arrangements Orders.
Unfortunately, many separated parents are unable to prioritise their children above their own feelings towards their former partners, and where one parent does not really want the child to spend time with the other parent they will often look to find reasons why contact should not take place; an illness can be and is often used as a reason.
In the event a child is unwell, it may best that they do not travel, even a short distance, to spend time with the other parent under the agreed Court Order and, generally speaking, in ordinary times a Doctor’s sick note could be obtained to confirm the extent of a child’s illness and to provide that parent with a reasonable excuse why the Child Arrangements Order was not complied with.
The situation with Corona Virus is progressing rapidly, and we are now in the unprecedented situation of national lockdown. As a result, parents and children of separated families face particular difficulty and uncertainty going forwards. Cooperation between parents is actually essential, now more than ever, to ensure that children remain safe and are able to spend time with each of their parents.
The guidelines are clear that taking children from one home to another is a legitimate journey, and indeed, the latest guidance from the Government expressly states “where parents do not live in the same household, children under 18 can be moved between their parent’s homes”.
It is helpful for parents to discuss and agree the approach being taken in each of their homes regarding home schooling, hygiene and preventative measures being put in place so that both parents and their families feel reassured that the same rules apply in each household and that there is consistent messaging and routine as far as is possible in these difficult times.
If one parent is self-isolating or taken ill, anyone with contact with an infected party should self-isolate for 14 days, and considering that fact the children and parent should remain where they are and self-isolate for the 14 day period, particularly for health and welfare reasons.
This may mean, that children cannot spend time with one of their parents as they usually would, but faced with this situation, both parents should continue to be flexible and to promote the relationship between the child and the other parent, and take advantage of the myriad of technology available to facilitate alternative indirect contact such as the telephone and video calling (facetime, skype and zoom, for example).
The Government guidance confirms that safety is a paramount issue and that each case must be considered on its own individual facts to protect and to promote Children’s wellbeing.
In the event of dispute between the parents as to whether there are genuine welfare concerns causing a parent to self-isolate with a child, the Family Court is still operating and can deal with applications regarding a breach of a Child Arrangements Order or for the return of the child to the resident parent.
Evidentially, this situation is fraught with difficulties, because the Court is very unlikely to have any evidence of positive test results for COVID-19 and will have to consider the Government Protocol in this international health emergency and whether or not the children are safe and appropriately cared for by one parent and ought properly to remain subject to isolation to the conclusion of a 14 day period.
It is likely that the Court may give parents the benefit of the doubt but this, potentially leaves the situation open to abuse by intentionally hostile parents. The Courts would however consider a parent’s passed record or promoting contact as part of the overall factual matrix.
The Courts remain functioning and are of course dealing with many hearings remotely so these applications can still be made. However, it is likely that a Judge is going to be critical of any parent that appears to be manipulating the situation to their advantage and, what may seem to be a short term strategic advantage by one parent may very well backfire in the longer term.
Where parents are at odds as to what they believe is best for the welfare of the child, they should consider consulting an expert mediator which can be done remotely. If absolutely necessary, and in cases of real emergency, Court intervention may be sought remotely but how to proceed will of course depend on individual circumstances.