With the government implementing stricter rules in respect of social distancing, many who are in co-parenting arrangements are worried that these uncertain times will damage their hard-won rights to have contact with their children. Below, we look at what the rules of lockdown are and how they relate to the rights of both fathers and mothers. The situation will be in particular hard for non-resident parents; it is essential that you understand your rights and responsibilities in respect of co-parenting and child contact clearly. Current measures in respect of staying at home are:
You should only leave the house for one of the following reasons:
- Shopping for basic necessities, which must be done as infrequently as possible;
- One form of exercise a day;
- Any medical need or to provide care or to help a vulnerable person;
- Travelling to and from work, but only if this cannot be done from home.
The first look at the list seems to exclude child contact from the allowed activities. Further panic was caused when Michael Gove, appeared on Good Morning Britain and suggested that the new rules meant children will have to stay in the household they currently were located in. This caused huge concerns for parents, whether resident or non-resident, as they suddenly were looking at the prospect of not seeing their children for weeks or even months. Good news is Mr Gove later apologised for giving misinformation to the public.
Below, we will try to answer to the most frequently asked questions in respect of child contact during the lockdown.
Can I keep my child with me until lockdown is lifted?
The simple answer is no. If you are co-parenting your child, meaning you have a child arrangement, in form of an agreement or a child order from court, detailing how each parent shall enjoy contact with the child, then you will need to abide by this. None of the emergency rules have abolished the contact orders or their enforcement.
The provision in respect of leaving the house to provide care and help to a vulnerable person has specifically been indicated to refer to child contact as well, i.e. parents moving children between households. However, as in most cases when it comes to the law, the answer is never straight forward. The UK family law system is based on the idea that the responsibility to care for the child rests primarily with the parents, not the Courts or other state institutions. This means that parents are expected to cooperate in respect of achieving the best outcome for their children. Therefore, whether you will be able to keep your child with you at all times, until the lockdown is lifted, will depend on particulars of your circumstances.
Can we agree different arrangements then ones in the court order, until the lockdown is lifted?
Many parents are naturally worried about their children being exposed to the virus causing COVID-19. Therefore, they will look to ensuring their child is protected by the measures in respect of social distancing. This, however, can prove to be more problematic if the child is constantly moved between two houses.
On 24th March, the President of Family Division and head of Family Justice, RT Hon Sir Andrew McFarlen has issued a guidance in this respect. Among other aspects it clarifies that the exception allowing parents to move the children between the households should not be taken as a must. On each occasion, the parents are encouraged to communicate openly and make decisions based on the best interest of their child.
Therefore, while the child arrangement orders need to be respected, the current unprecedented circumstances call for a more flexible approach. It is natural that both parents will want to have contact with their child, but it is also crucial that parents act in a responsible manner and understand the risks. If both parents agree that, for the time being, it is in the child’s best interest to change the way the contact with the other parent is being conducted, then the parents are free to do so. There is no need for the courts to interfere in it, but you might consider speaking to a child law solicitor before making any such changes to the arrangements.
I think my child is at risk, but the other parent does not agree to vary the contact
In situations where agreement between parents cannot be reached, you have the option to unilaterally vary the arrangements and not allow the child to be moved between the household. However, ensure that you have made this decision after careful deliberation. It is also advisable that you speak to a solicitor, before resorting to this move. Child arrangement orders still can be enforced and if the other parent chooses to seek enforcement, then the courts will look at whether your position of disallowing contact was reasonable. Factors that the courts will look at is whether there are particular health-related reasons that make the child more vulnerable to the virus, bringing them in the group of high risk. Another factor can include the proposed activities during contact or what the circumstances of the other parent or the people living with them are. For instance, if the other parent, or someone living with them, is at higher risk of being infected due to their daily routine. The courts will also consider whether the parties attempted to reach a mutually agreed solution, therefore you should ensure that before reaching a unilateral decision, you make an honest attempt at agreeing on the new contact details with the other parent.
In any event, irrespective if you agree with the other parent to vary the contact arrangements or if you change those unilaterally, you need to ensure that there are alternative arrangements in place for your child to enjoy contact with their other parent, phone calls, video calls etc being one of those.
I have supervised contact arrangements; can I still see my child?
Child contact centres have found themselves in very difficult position, as they have to make a judgement call of balancing the harm that not seeing ones’ parent can cause, against the risk of being infected. Some centres have closed down, but some continue to operate. It is advisable that you contact NACCC or your local contact centre to enquire about the arrangements. However, you also bear the responsibility to contemplate whether it is appropriate for your child to be moved to the contact centre at the time of a pandemic.
I have an upcoming hearing, shall I attend?
The courts have made arrangements to move all the ongoing hearings to remote format. This means that the hearings will take place via phone calls or video links. You or your solicitor will receive appropriate directions in respect of this.