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COVID-19 and the implications regarding Childcare Arrangements

18.05.2020 Family & matrimonial

Yael Selig

Yael Selig Consultant

Susan J Williams

Susan J Williams Partner

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In recent weeks family practitioners have had to deal with scenarios and situations which we hadn’t previously envisaged or had to consider. One parent stuck in lockdown on their own in one part of the country and the other with the children miles away, and grandparents and grandchildren not being able to see one another and share that special bond that exists. These are a few examples of the difficulties which separating families are having to endure.

During our sojourn through unchartered waters all of us as family practitioners will have had to manage client expectations whilst bearing in mind that the most important consideration in all of this is of course the welfare of the children and what is best for them.

If we were asked to share any pertinent advice for separated parents this would be as follows:

  • The national public health pandemic is not an excuse for either parent to take the law into their own hands and use the lockdown as a weapon against the other parent or an opportunity to pursue a course of action that furthers their own agenda
  • It is still the case that neither parent can take a child abroad without the agreement of the other or an Order from the Court;
  • To be clear, this does not just refer to travel abroad. Even though it is not a criminal offence to take your child and relocate within the UK without the other parent’s agreement, this will still be addressed by the Courts in England and Wales and the Family Court can still make an Order for the child to be immediately returned.
  • The reality is that any plans for travel at this moment will need to comply with the current lockdown restrictions in each of the four devolved nations as well as abide by the Family Law Rules of England and Wales.
  • Without the other parent’s consent and agreement there is virtually nothing to be done. Unless of course an Application has been made to the Court and there is an Order made to that effect;
  • In light of the national health pandemic the CFC (Central Family Court) and Family Courts across the UK will only deal with urgent business. Although access to the Courts may be difficult, children matters are considered urgent business. We  are able to advise and take urgent instructions to preserve and advance the position for what may be needed to be done for dealing with matters regarding children expeditiously.  
  • Parties are strongly advised to pursue the Mediation route especially in cases where Final Hearings have been adjourned often at short notice and the parties are left in limbo.  This can have disastrous consequences for the parties involved who may have been waiting for months for the conclusion of matters. By pursuing mediation they can at least attempt to narrow the issues or even get to fully resolve the issues which could create a precedent for resolving differences of opinion in the future.
  • The President of the Family Court, Sir Andrew McFarlane has issued very useful guidelines which are aimed to assist the parties to navigate through this uncertain time. 
  • He has explained that as a result of the country being in a middle of a public health crisis on an unprecedented scale, the expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for the child and deciding where and with whom their child spends time.  Parents are to abide by the “Rules at Staying at Home and Away from Others” issued by the Government on 23 March 2020 (“the Stay at Home Rules”) and as amended by subsequent regulations..  In addition to these rules, advice about staying safe and reducing the spread of infection has also been issued and updated by Public Health England and Wales;
  • The Stay at Home Rules  made the general position clear, it was no longer permitted for a person and this would include a child to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work;
  • Government guidance issued alongside the Stay at Home Rules on 23 March 2020 dealt specifically with Child Contact Arrangements.  Essentially it said where parents are not living in the same household, children under 18 can be moved between their parents’ home.  This obviously established an exception to the mandatory Stay at Home requirement however, it did not mean that children must be moved between homes.  The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances to include the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household than the other. 
  • As the lockdown eases and restrictions are slowly lifted parents will have to make decisions in light of an ever-changing set of circumstances and may have to take into account that different devolved nations will have different regulations and will ease the lockdown restrictions at different times. This is particularly pertinent to families who live across a border area for example between England and Wales.
  • This calls for parties to communicate with one another about their worries and what they think would be a good practical solution.  Parties will need to act reasonably and of course many are extremely worried and anxious about coronavirus and the health implications for themselves, their children and the extended family.
  • It might be entirely reasonable in specific situations for the other parent to be genuinely worried about this. The parties need to act sensibly and it would be a good idea for each parent to record any agreement in a note, email or text in order to vary temporarily arrangements that have been put in place prior to the pandemic.
  • Parents need to have ongoing conversations about what happens if restrictions are re- imposed if the rate of infection rises again. Together they can consider what worked well this time round and what may need to change.
  • The reality is that common sense needs to prevail in all cases.

In relation to grandparents, it is known that the relationship between grandparents and grandchildren is very special and when parents relationships fall apart and they establish new family units,  sadly it is all too common for the ties between grandparents and grandchildren to be severed, often temporarily but sometimes permanently, which is tragic.

Unfortunately grandparents do not have the same rights as parents when it comes solidifying time they can spend with their grandchildren, Whilst an application to the court can be made, grandparents have to first ask the court for permission to make the application. It is not an automatic right.

The heartache for many grandparents during the covid-19 public health crisis is that not only have a large percentage of grandparents had to self-isolate due to their age or health vulnerabilities, these government requirements of self-isolation, may have co incidentally come at a time when the parents of grandchildren have separated - compounding the upset for grandparents.

The starting point is always to keep open a line of communication. This has often been perceived as easier for maternal grandparents, but it is just as important if not more so for paternal grandparents. Open and honest conversations about what the issues are and how they may be overcome is key.

Whilst self-isolation and social distancing regulations, means direct social contact will be tricky for some time to come, indirect contact via WhatsApp, FaceTime and similar videoing streaming platforms are available, along with letters, cards and small gifts that can be sent in the post. These alternatives can be the foundation of future direct contact when the lockdown restrictions are lifted and separate family units are more established.

Grandparents can remind the parents about the practical and emotional support they can offer as we all come out of lockdown, and as parents and children are gradually encouraged to return to work and school. In addition they can reinforce to the parents the families cultural and historical background, providing the grandchildren with a clear picture of their identity which is so important as they grow and develop and which would be lost if there was no contact between grandparents and their grandchildren.

As discussed above mediation should be considered and used where possible. Mediation services have adapted the way they work during the covid-19 pandemic and so grandparents along with parents can access the service.

As a last resort, an application to the court for permission to make an application for contact can be made. Whilst such an application is unlikely to be deemed urgent during the covid-19 crisis, preparation for the application can be done during the lockdown period so that when the restrictions are lifted the application to the court can be swiftly done.

Making family relationships work should be strived for, whether that’s between a child and their parents or between a child and their grandparents, as that will be in the best interest of the child. The child’s welfare is considered to be best met when they are able to have a meaningful relationship with all their family members and the Covid-19 pandemic should not be allowed to become a barrier to achieving this.

If you or anyone you know are facing  similar difficulties please do not hesitate to get in touch.

Yael Selig                                                    
Email : YaelSelig@incegd.com
Tel:  07881 552 949

Susan J Williams
Email: susanjwillaims@incegd.com
Tel: 07736969373

Article authors:

Yael Selig Susan J Williams