In unprecedented times such as these, maintaining contact with your child[ren] will be challenging, unless the “resident” parent is willing to co-operate now, more than ever.
The sad reality is that where maintaining contact has been an issue in the past it is likely to become more of an issue now because so much will depend on the relationship that exists between the parents and the ability to trust one another and to “work” together for the benefit of the child[ren].
In children’s cases involving “intractable hostility” or “parental alienation,” or put simply where the resident parent does not actively support or encourage regular contact with the non-resident parent and goes so far as to actively obstruct it, it is all very well to commend parents to act reasonably and to put the welfare of their children first, something everyone should endorse and ordinarily would expect. However, in cases where the parents’ relationship has reached a point where trust has gone and the ability to work co-operatively is simply unattainable, external help, support, guidance and, at times, court orders are required and that will continue throughout these very testing times.
The short answer to this is YES. Although in strict family law terms, your children are entitled to see you subject, of course, to any agreement you have reached with the “resident” parent and or any court order which exists in relation to your child[ren] arrangements.
At 13.00 today [26.03.20] Parliament introduced The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
Regulation 6 provides 11 examples of what is a “reasonable excuse” to be outside. The ones that are likely to be relevant to family cases are as follows:
Para h: to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
Para j. in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
Para m. to avoid injury or illness or to escape a risk of harm.
What this means is that, where agreed, or where court ordered, the non-resident parent may continue to have contact with their child[ren] and or have them live with him or her for the agreed or court ordered specified time.
Either parent may leave their home in order to facilitate such contact, for example for collection and return of the children, whether this is from each other’s homes or at an agreed or court ordered meeting place.
On 24.03.20 The Rt. Hon. Sir Andrew McFarlane President of the Family Division and Head of Family Justice issued Guidance on Compliance with Family Court Child Arrangement Orders. The most relevant aspect of the guidance in practical terms for separated parents is as follows:
Para 6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a Child Arrangements Order should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
Para 7. Where parents do not agree to vary the arrangements set out in a Child Arrangements Order, but one parent is sufficiently concerned that complying with the Child Arrangements Order arrangements would be against current Public Health advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are 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.
Para 8.Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the Child Arrangements Order, the courts will expect alternative arrangements to 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.
The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.
The most important message arising from this guidance for all separated parents where there is in existence a Child[ren] Arrangements Order is to ensure that:
1. If there is a need to vary any aspect of a Child[ren] Arrangements order make a full note of the variation agreed and when it was agreed and confirm it in either an email or text message to the “other” parent so there is written evidence in the event this is disputed in the future
2. If one parent who has the care of the child[ren] refuses to either facilitate the collection or the return of the child[ren] to the “other” parent on the basis of current Public Health advice rules which exist at the time, whether they were acting reasonably may be for a court to determine at a date in the future. Once again, a clear note of what decision has been made and confirmation via text or email would be sensible in the event this matter does or may need future court determination.
It would seem that the Regulations introduced today have not considered that possibility, when, in fact, many such Orders do require supervision.
Very much will depend on whether supervision was being conducted by independent third parties, such as in a contact centre or whether this was by a third party either in the community or the home.
In the first instance, contact centres currently are not open and so no supervision can currently take place within contact centres.
In the second instance, if contact was taking place, supervised, in the community, the current Public Health regulations would not permit this continuing. This would require a variation of the current Child[ren] Arrangements Order
In the third instance, if the contact was taking place, supervised, in a third party’s home, for example the home of grandparents or other family relatives, with whom the non-resident parent is not living, this too cannot take place and would require a variation of the current contact arrangements
In the fourth instance. If contact was taking place, supervised in the non-resident parent’s home, supervised by another family member or household member living within the same household of the non-resident family, this would be acceptable and currently does not breach the current regulations and, therefore, does not require any variation to the Child Arrangements Order.
Much will depend if you are currently involved in court proceedings or whether the Order is one that was made a final hearing and the proceedings are now concluded.
a) If proceedings have concluded
Providing you and the “other” parent are agreed and subject to making a note and confirming this in a text or email, for the time being that should be sufficient.
If you and the “other” parent are not agreed, then an application to the court will need to be made as soon as possible.
b) If proceedings are continuing
If you are legally represented you should always seek advice from your solicitor before proceeding to agree any variation.
Whether you are legally represented or not, in many private family law cases, children have their own legal representation and a Children’s Guardian will have been appointed. Therefore, no variation should be agreed without consultation and approval from them.
If agreement cannot be achieved with either the other parent or the Children’s Guardian, an application to the court will need to be made as soon as possible.
You should not use public transport to travel to the other parent’s home and you should, as parents, remain two metres apart [6ft 7 inches] when you are delivering your child[ren] to the other parent. If you live within walking distance, you could consider using your daily exercise time to deliver your child[ren] to the other parent.
The new ruling means that couples who do not live in the same household should not see one another. That means that if one parent has started a new relationship, they should not continue to see their new partner. If the other parent is already living with a new partner, it is acceptable to ask questions to reassure yourself that they are also adhering to the Government’s ruling, for example, are they only going outside for reasons the Government has indicated would be acceptable. These are all identified in the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 implemented today. For the sake of clarity these are all listed below:
Section 6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.
(2) For the purposes of paragraph (1), a reasonable excuse includes the need—
(a )to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2;
(b)to take exercise either alone or with other members of their household;
(c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;
(e) to donate blood;
(f )to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
(g) to attend a funeral of—
(i) a member of the person’s household,
(ii )a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
(I )to access critical public services, including—
(i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.
(3) For the purposes of paragraph (1), the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.
(4) Paragraph (1) does not apply to any person who is homeless.
You will have seen that some Government advice has been for couples who are living apart to move in together at this time. However, where there are children involved, and the “other” parent plans to arrange for their new partner to move in to live with them and the child[ren] or if they have already done so, you may want to know about the new partner and in particular their background and suitability to live with your children. In such circumstances, you should not hesitate in asking reasonable child focused questions which should be on the advice of your solicitor if you are legally represented.
If you accept that this is for public health reasons the resident parent should agree to facilitate alternative arrangements so that your child[ren] can still see you at the same intervals as would have been the case if you were have face to face contact. This should be via Telephone/Skype/FaceTime/WhatsApp and or Text and Email. If you are unable to achieve agreement about this you should return this matter to court if proceedings are pending or where proceedings are not currently pending you should consider issuing a court application.
If you are of the view that the resident parent is failing to act reasonably and is relying on the public health advice inappropriately in order to obstruct you from having contact with your child[ren] then you should either return this matter to the court, if proceedings are pending or issue an application.
If you accept that this is for public health reasons the non-resident parent should agree to facilitate alternative arrangements so that your child[ren] can still see you at the same intervals as would have been the case if you were have face to face contact. This should be via Telephone/Skype/Facetime/Whatsapp and or Text and Email. If you are unable to achieve agreement about this, you should return this matter to court if proceedings are pending or consider issuing a court application.
If you are of the view that the non-resident parent is failing to act reasonably and is relying on the public health advice inappropriately in order to obstruct you from having your child[ren] returned then you should either return this matter to the court, if proceedings are pending or issue an application.
Always remember that where you are unable to achieve agreement but you and the other parent is willing to continue to try to do so, that mediation is still available at this time. Whilst it is currently not available face to face, mediation can take place over the phone or via skype/facetime or watts app. Whilst this was not previously the “normal” practice, this has been permitted for some time and qualified mediators are familiar with this practice.
Family Arbitration is a voluntary method of resolving disputes in relation to children or finances in a binding manner through the joint appointment of a private judge (the arbitrator), who is trained and accredited by IFLA (the Institute of Family Law Arbitrators). Arbitration can take place at any stage and can be used to determine a discrete dispute or to resolve the whole dispute.
When it comes to children, Venters Solicitors are experts in the field and can offer legal advice/representation/mediation and or arbitration remotely at this time.
020 7277 0110