Ever since the lockdown became a possibility, family lawyers have been getting calls from clients about how this might impact on their contact with their children. It is a hot topic of discussion and the government, in the form of Michael Gove, has even had to issue a statement clarifying the lockdown guidelines. The President of the Family Court has also now issued a statement.
Does lockdown change court rulings?
Starting with basics, if there is an existing court order the default position is that this must be obeyed. If a party does not comply with its terms, they will have to potentially justify themselves at a later date. So, if you have separate households and the children go between the two of them, how do you manage it in view of the current lockdown requirements?
The courts’ overriding duty in any case involving children is “the best interests of the children”. That should be your yardstick applied dispassionately and objectively. If one of the households is self-isolating or somebody has contracted Coronavirus in it, then it is common sense that the children should not visit that home. However, if there is no issue about ill-health or self-isolation then the fact of the lockdown should not be used as an excuse to suspend contact.
Can access be maintained?
It's important to consider the wider picture in the best interests of the child. If the two households are relatively close to each other and moving directly from one to the other (being transported in a vehicle) current government guidance suggests there is probably only a very small level of risk. However, if parents live several hours from each other necessitating a longer journey, potentially with comfort stops on the way, then you do have to ask yourselves is this sensible and what risk you and the children might be taking.
The Family Court have stated that they would expect existing orders to be obeyed but accept that in the current crisis some parents will not feel it is appropriate for contact to continue.
There is no easy answer and each case will stand or fall on its own particular set of facts. The Family Court have stated that they would expect existing orders to be obeyed but accept that in the current crisis some parents will not feel it is appropriate for contact to continue. They have made it clear that if those decisions are to be examined after the event that they will look at the “reasonableness” of each parent’s position. They will not automatically take the view that a breach of the order is wrong but will look at all the circumstances and the reasoning behind any decisions made. Therefore, if you do feel the children should not see the other parent during the lockdown, you should carefully set out your reasons to the other parent and be prepared to justify them. It is possible courts might order additional contact in lieu afterwards, so think about whether you should offer that anyway.
Communication is key
As is always the case communication can be key. If you have a reasonable or a working relationship with the other parent, I anticipate you will be able to work something out, perhaps just a temporary arrangement during the period of the lockdown. Change may be forced upon you if one of you is a key worker and the other is not. With the schools being closed somebody needs to look after the children and it is usually better if it is one of the parents.
If the relationship with the other parent is not good then consider mediation. Mediators are still able to work using videoconferencing and they will help you find a solution. Courts should be a last resort and, especially at the moment, as the courts are under considerable stress and strain with the impact of the pandemic.
Stephen Root is one of Yorkshire’s leading family lawyers. Highly praised by industry guides Chambers and Partners and Legal500, he has been supporting divorcing couples for over 30 years.
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