We are in the middle of a public health crisis on an unprecedented scale. Many parents are worried about where they stand in making arrangements for the care of their children. If you are in the early stages of separating you might want to take some initial legal advice to put your mind at rest.
At any time when parents are in the process of separating emotions often run high and communication can be difficult. There is no doubt that in times of stress, the outbreak of COVID 19 must be one such time, communication can be even harder and the government’s announcement to try and stop the spread of the virus is placing a strain upon families.
Government guidance is clear (‘Rules on staying at Home and Away from Others’); where parents do not live in the same household as children under the age of 18 those children can move between their parent’s households. The President of the Family Division has advised that the decision is for parents to make. Parents should take account of their children’s health, risk of infection and the presence of any recognised vulnerable individuals in either household. The expectation is that parents should act sensibly and safely when deciding where and with whom a child spends time. You can find this guidance by clicking on this link.
School and nursery closure how should the children’s care be shared?
Before the outbreak of the virus arrangements for the care of children was usually ‘split’ into term time and school holiday. With closures of schools and nurseries, unless there is good reason, the ‘status quo’ should be maintained. If the arrangements had been that children were spending time with both parents, and it is safe to do so, this should continue.
Illness of parent or child – what should happen?
If a child or parent has symptoms of the virus, however mild, the government’s guidance is that they must stay at home and self isolate for 7 days. All other members of the household must self isolate for 14 days. If self isolating the children should not leave the house, not even to spend time with the ‘other’ parent. If the ‘other’ parent is self isolating they should not spend time with their children during the time of self – isolation.
In most cases both parents share parental responsibility for their children (if you are uncertain whether you have parental responsibility you should seek legal advice). This means that parents should communicate with one another with regards to their children’s health. If it is not possible for the children to physically spend time with one parent alternatives should be found, for example video time/face time. It would not be unreasonable to expect ‘missed time’ to be ‘made up’.
Unfortunately there will be cases where one parent will use self isolation as an excuse to prevent children from spending time with the other parent. This behaviour is almost certainly going to be detrimental to the children’s welfare; they need both parents in their lives. If you suspect this behaviour try and keep a record of the requests you make and the excuses given. In reality it may be difficult to ‘prove’ that self isolation is not legitimate.
What if you have a Child Arrangements Order (CAO)?
CAOs are binding and both parents should adhere to them. If a CAO is broken an application can be made to the court for enforcement. If the court finds that the CAO has been broken it has far reaching powers including varying where the children should live; imposing a fine or imposing a period of imprisonment. In these challenging times proving that one party is falsely claiming self isolation may be difficult. Court proceedings ought to be considered as a ‘last resort’.
Should a child travel abroad at this time?
Unless there is a CAO confirming that a child should live with one parent both would need to consent to travel abroad. A parent with a ‘live with’ CAO can travel abroad for 30 days without the other parent’s consent. Government guidance, at this time, is that people should only travel for one of four reasons; taking a holiday abroad is not one of them! The Foreign and Commonwealth Office’s guidance is that all non-essential foreign travel ought not to take place. If you suspect that the other parent intends to travel abroad at this time you seek urgent legal advice.
How will the court conduct hearings during this time of ‘lock down’?
Arrangements, for the conduct of court hearings, are proving to be challenging. Our local courts and judges are doing all they can to conduct business as usual. The vast majority of hearings will be conducted remotely by video or by using other digital communication platforms, unless fairness and justice requires a face to face hearing. We expect that many non urgent direction hearings may be adjourned. The government has given guidance as to the conduct of family cases and this can be found by clicking this link.
Cases of domestic abuse or where a parent/child is particularly vulnerable
If you fall into either of these categories the guidance in this note may not apply and you should seek urgent legal advice.
Our Family Team at Nalders are here to help, advise and support you in these difficulties times. You can contact Manda Toms, Partner, on 01872 243654 or by email mbt@nalders.co.uk