Coronavirus: Self-isolation raising concerns for divorced parents sharing children, say lawyers

[Editor’s note: On Tuesday the government confirmed that transferring children under the age of 18 between households, as required by court orders, is permissible under the new stay at home guidance. It states: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”]

Increased social distancing measures to combat the coronavirus are putting strain on UK families with shared childcare arrangements, say family and divorce lawyers.

Boris Johnson has warned everyone should be socially distancing, including working from home where possible, not visiting pubs or restaurants and not seeing family in other households.

And for those with underlying health conditions the instructions are even stricter – self-isolate at home for a period of 12 weeks.

Simon Mawdsley, a family law senior associate at Aaron & Partners, tells The Independent that as these policies become more widespread there is “confusion” about what arrangements between couples might mean, particularly without any assistance from the courts.

According to Relate, the relationship charity, almost half of divorces in England and Wales involve children under the age of 16. There were 90,871 divorces between opposite-sex couples and 428 between same-sex couples in 2018 (latest data available).

Sarah Green, family and divorce lawyer at TLT solicitors, tells The Independent: “We have already had enquiries coming in from anxious parents, both from those who are worried about breaking court orders and those who are concerned that the current warnings to self-isolate are being used to flout current arrangements either agreed or ordered by the court.”

If couples have agreed during the terms of their divorce to have shared custody of their children, including allotted times to be spent in either household or nights spent sleeping at one house, then stricter measures to stop families moving around could be problematic.

Clare Pilsworth, a partner at Tees Solicitors, says for those where court orders are in place, they need to be adhered to as much as possible: “You need to maintain the pattern within the court order, provided you can do so safely within the government’s coronavirus guidelines. This may mean several changes over time because the guidelines may change over the coming weeks.”

And Green agrees: “Advice from Cafcass (the court welfare officer) is clear in that wherever possible, parents should stick to agreed child arrangements. Parents will need to give thought as to how this can work for their family whilst ensuring everyone’s safety and limiting the spread of Covid-19.”

Katie Spooner, partner at Winckworth Sherwood, says: “Social distancing and even self-isolation does not mean that the arrangements you have in place for your children should fall away. These arrangements, whether informally agreed between parents or set out in a court order, remain effective and should continue to be followed. Indeed, taking children from one home to another is a legitimate journey according to Cafcass and government guidelines.”

Mawdlsey says of course there are specific cases that will be harder to address than others but that many will find it tricky to navigate.

“The main problem will be where contact handovers have to be in public (cases where there has been domestic violence) and so careful consideration will have to be given to where and how contact handovers should take place especially if the address of a vulnerable parent is not to be disclosed.

“Another problem will be where contact takes place in a dedicated centre, as these will undoubtedly have to close. Sadly, in that situation contact will have to stop,” he adds.

And Cara Nuttall, partner at JMW Solicitors and child law specialist, say although it is imporant to keep to arrangements, “routine never trumps safety”. She says: “The first and most important consideration is what is best – and safest – for the health and wellbeing of both the children and wider family. While guidelines do state that children can move between homes during this period of lockdown, it will undoubtedly be more difficult for children to do this in the same way as before.”

Pilsworth says: “Whatever you and your co-parent have in place, it’s especially important in these difficult times that your child’s welfare is of first and foremost consideration. The child’s wellbeing is paramount and takes precedence over any parental rights in the eyes of the court.”

Mawdsley recommends that in order to follow government protocol parents, where possible, should “find a suitable open public space, a supermarket car park, and transfer the children between cars, without any other interaction.”

Alternatively one parent should be responsible for the collect and return of the children and that parent should not enter the other property but simply drop the children outside and watch them enter the property, adds Mawdsley.

Spooner says: “Practically speaking, it will be beneficial for separated parents to discuss and agree the approach being taken in each of their homes as to hygiene and other preventative measures being put in place, so that parents (and their children) feel reassured that the same rules apply in both homes.

“Consistent messaging for children and maintaining routines as far as possible will be key in these worrying times in order to alleviate any anxiety they may be feeling.

“In high conflict families, the willingness of parents to facilitate indirect contact or be flexible in child arrangements will likely be an issue. In these extraordinary times, it is important to focus on what is in the best interests of the child/ren. They need to be shielded from conflict and feel secure in their relationships with both parents,” she adds.

If you are faced with not seeing your child in person, then indirect contact (FaceTime, Skype, Zoom) becomes more important. “There should be no time restraints put on indirect contact as it will be down to how interactive the children are on such platforms,” says Mawdsley.

Mawdsley says: “If, for reasons of work or self-isolation, the children have to spend more time with the other parent, and this is outside the normal routine, we do not believe that such changes would merit a shift in the status quo in respect of long-term arrangements.”

Green says: “If children end up spending time in one home where a parent is self-isolating, it may be appropriate to “make up” time afterwards however this is not the time for parents to be holding out for every last minute of “lost time” to be replaced; common sense needs to prevail.

“Some may see the current situation as an opportunity to manipulate a court order, but this is unlikely to do them any favours in the eyes of the court in the long-run and in reality will be more damaging for their children than not.”

Do be aware that it will still impact pre-booked family holidays you had already factored in childcare arrangements for.

Spooner says: “Where a parent is unreasonably refusing to make children available to spend time with their other parent, ultimately a court application could be made. Court hearings are still running but are taking place remotely, with parties dialling into hearings or using video link.

“However, the reality is that there could be delays in applications being processed and cases being heard given the precautions having to be taken to follow government advice (it could be that there are fewer members of court office staff, for example).”