What happens to shared care of, and contact to, children during the Covid crisis?
If you have either a voluntary agreement or court order which enables your child to share his/her time between parents or a contact agreement or order, your default position should be that these arrangements continue and that suspension of any existing arrangements should be a last resort. The order or arrangement was made because contact is in the child/ren’s best interests. However, we are all aware that this is a difficult time and that there are government restrictions in place as to travelling and social distancing.
Let’s assume for present purposes, that neither parent nor the child/ren actually have Coronavirus. There are two key pieces of government-issued guidance to consider.
The first are the ‘Social distancing’ guidelines last updated on 30th March and the second is the guidance issued by the President of the Family Division on 24th March.
The President’s Guidance recommends that as far as possible, if/how shared care/contact should take place during this difficult time is up to the parents to decide between themselves. It is an exercise of their joint Parental Responsibility to make sensible decisions on behalf of their child/ren: Para 1 of the Guidance says: ‘Parental Responsibility for a child……..rests with the child’s parents and not with the court.’
If at all possible you should carry on with the arrangement and try to discuss on a practical level how shared care/contact is going to take place.
If you need advice, another good place to look is on the CAFCASS (Children and Family Court Advisory and Support Service) website as they too have published guidance:
‘If any court directed spending time arrangements are missed, think about how you and your co-parent may be able to make up your child’s time after restrictions are lifted. Remember, any rearranged spending time arrangements should always be for your child’s benefit and should not be used as a source of tension or conflict – especially at a time when your child is likely to feel anxious about the effects of the pandemic,’
‘If your household is not in self-isolation, then it is still recommended that you and your child maintain sensible social distancing from members of the public. This means avoiding social activities such as going to restaurants, theatres and cinemas and only using public transport if you really have to,’
‘Unless you or your child has an underlying health condition or other vulnerability, transporting them from one home to the other would usually be a legitimate journey,’
So, moving children between homes is an exception to the ‘stay-at-home’ principle and a parent should not object to contact on that factor alone. On the other hand, what does the journey between homes involve? Travelling through London on public transport at the moment is probably to be avoided so you might need to look for other ways that direct contact can continue – can someone with a car help with the journey? Can you meet safely in another area?
Where, a child does not get to spend time with the other parent as set down in any agreement or court order, alternative arrangements could be made to establish and maintain regular contact between the child and the other parent within the ‘Stay at Home’ rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.
What happens if you and your ex really can’t agree what should happen? Where parents can’t agree to vary the current shared care/contact, and one parent is sufficiently concerned that complying with those arrangements would be against current Covid social distancing/travelling advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they believe is safe. If, afterwards, this is questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the ‘Stay at Home’ rules in place at that time, together with any specific evidence relating to the child or family. Is there a genuine medical reason why that parent took that view?
So, if after trying to discuss arrangements with your ex, you really feel you have no option but to stop shared residence/contact, then you should be prepared to justify your unilateral action and to consider making up any time your child/ren lose with their non-resident parent once this health crisis is behind us.
Of course, if either a parent or child is classified as vulnerable, the situation is a little different albeit if a parent is vulnerable but the child is not, shared care/contact should still continue with practical arrangements for collection, return, travel etc varied as can be agreed. If either parent or the child is actually suffering from Coronavirus, then the arrangements will be suspended as they would be for any illness. Keep a note of any agreement reached and the number of days/ hours the child loses with the non- resident parent as evidence may be required if the suspension of contact ends up disputed in court.
As ever, communication is key so be kind, be patient and be safe.
Our Family team are always available to advise. Our Family department can be contacted via email [email protected] or by calling 01206 577676.
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