COVID-19 EXPERT LEGAL INSIGHTS

Co-parenting during COVID-19 – what if we
cannot agree on our child returning to
school or nursery?

10 July 2020

We recognise that the last few months have been testing for many separated parents who have been co-parenting throughout the pandemic – with home schooling and juggling work and child care commitments between two households. No doubt, these circumstances will have brought additional strains and challenges.
 

The gradual easing of the lockdown has brought some reassurance and hope that things are slowly returning to “normal”. However, as many parents may well know, we are clearly not back to the new “normal” yet, with many schools and some nurseries yet to fully reopen and only some children able to return to the classroom and to other child care settings. At the time of writing, the government has said that it is not compulsory for children to return to school or nursery at this time – it is uncertain when this may change. The Department for Education states that parents will not be fined for non-attendance at this time. However, the education secretary recently warned that it will be compulsory for children to return to school at the start of the new academic year, unless there is “good reason” that they cannot.  He reiterated that from September, parents may face financial penalties if children are not present at school.  Of course, should there be a UK-wide second wave of coronavirus outbreak, a full reopening of schools may need to be looked at again.

With the uncertainty as to whether schools can safely reopen fully, some separated parents may well find themselves disagreeing on whether their child should attend in such circumstances.

It is understandable that some parents may be particularly anxious about children returning to their child care settings with the virus still in circulation in the community and the potential health risks to both the child and others that come with this. But at the same time, it is important to consider the child’s overall welfare to include their physical, emotional and educational needs.

Key decisions in a child’s life, such as which school your child should attend or whether they should attend at all, must be agreed by all those who have parental responsibility. If one parent disagrees on this, the school or nursery might not allow the child to attend.

When facing a disagreement such as this – many parents will want to try and reach a resolution as quickly as possible, particularly given the amount of school a child may have already missed.

What should you do if you cannot agree about your child’s return to school or nursery?

Communication is key and the first step is to try and discuss concerns with the other parent with a view to reach a practical solution, taking into account the child’s welfare to include their physical, emotional and educational needs and balancing these against the risks to the child or to others in this pandemic.  Communicating concerns to the school may prove helpful, so at the very least, the school can explain what measures they have or will put in place. Communication between parents can take various forms and parents may be able to do this directly between themselves or with the assistance of a mutual contact or a third party professional such as a lawyer, mediator or therapist. However, sometimes additional help is required to try and resolve a dispute regarding such child arrangements.

In circumstances where agreement can simply not be found, or communication with the other parent on this matter has broken down entirely, an application to the court for a Specific Issue Order may become necessary. This would require a hearing in front of a judge (which may be by way of video conference) where each party puts forward their argument and the judge then determines the issue. However, parents should consider that the courts are currently under immense pressure and many applications that would have been heard within a few weeks previously may now take months before a hearing can take place. The courts are currently implementing gate keeping measures to prioritise those urgent matters. For those pressing and urgent matters concerning a child’s welfare, which could involve a child’s education and attendance at school or nursery, a court application for a Specific Issue Order may well meet the criteria and will need to be issued as soon as possible.

However, there are other alternative methods of resolving disputes that parents may wish to consider, which can be more appropriate in these current times and may also enable decisions to be made quicker than an application through the courts, such as mediation or arbitration. My colleague Connie Atkinson has previously written a blog setting out these alternative dispute resolution options further and can be found here.

The Judge in a family court or an arbitrator (where parents have opted for private arbitration to resolve their dispute) will look at each parent’s concerns and assess what would be in the best interests of the child. If one parent has reasonable concerns about a child’s attendance at school or nursery, it is essential to set out what alternative arrangements for the child would look like and to persuade the court that this is in the child’s best interests - for example, how will their educational needs be satisfied while not at school? How will this fit in with the child arrangements already in place?

The government guidance at the time will be relevant to any application also.  If a full reopening can go ahead in September, and attendance at school is stated to be compulsory, a parent is likely to find it more difficult to persuade a judge that a child should not be attending school.  In those circumstances, based on the recent comments by the education secretary, any dispute is likely to centre around whether there is a “good reason” for the child not to attend.  No guidance has been issued as to what might amount to a “good reason”, but it is likely to consider any health conditions or concerns particular to the child or the child’s household,  in particular whether it is necessary for that child or the child’s household to shield. 

The most important thing to consider in all of this is the child’s overall welfare – particularly during a time where they may be especially anxious and unsettled. Careful consideration of the options available to resolve a dispute regarding your child’s attendance at school or nursery is essential.

Please note that the general guidance provided within this blog is accurate at the time of writing (10/7). It does not constitute legal advice and specialist advice should be sought in individual circumstances.

Further information

If you are faced with challenges in co-parenting during these unprecedented times, please contact our team of family and divorce lawyers, who have longstanding experience in resolving disputes around child arrangements and co-parenting and who understand the pressures this can put on all parties involved.

You may also be interested in reading our previous blogs about children and divorce, including:

See also our family blog and other blogs relating to coronavirus (COVID-19) for other topics and guidance.

 

About the author

Alexandra is an Associate in the Family and Divorce team with experience of all types of private family law work relating to both finances and children. Alexandra offers practical and realistic advice and provides excellent care for her clients, working through technical legal problems pro-actively to achieve the best possible result. 

 

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