COVID-19 EXPERT LEGAL INSIGHTS

Overcoming the challenges of co-parenting for separated and divorced parents

24 March 2020

Following the government announcing restrictions last night for staying at home and away from others to help manage the coronavirus crisis, further details have been published about the “lockdown” restrictions, which confirm that “moving children under 18 between their parents’ homes” is one of the permitted reasons to leave home. 
 

For at least the next three weeks in the UK, we are subject to the most stringent restrictions on movement that we have experienced in peacetime and the current situation brings particular challenges for separated parents.  Last weekend, Cafcass (the Children and Family Court Advisory and Support Service, which represents children in family court cases) published some welcome COVID-19 guidance for separated parents, which now needs to be read in light of the government’s latest restrictions. They have also launched a co-parenting hub with many useful resources during this difficult time and beyond.

Below we address some issues that we are seeing arise for separated parents in the current crisis.  It helps to remember that the guiding principle is to make decisions that are in the child’s best interests, balancing that with any risks to other people in this pandemic.

Please note that the general guidance provided within this blog is accurate at the time of writing (24/3). It does not constitute legal advice and specialist advice should be sought in individual circumstances.

Do existing court orders need to be followed?

The President of the Family Division, Sir Andrew McFarlane, has today published extremely helpful and sensitive guidance for those who have children arrangements orders from the family court and I would urge every parent who has to navigate child arrangements with the other parent to read it as a priority.

Cafcass’ guidance is that parents should still try to comply with the court order, unless it would put the health of the child or others at risk if you were to do so.  This is unchartered territory and parents will have to use their judgement and hopefully work together to agree what should happen over this next three week period. 

Official restrictions due to COVID-19 mean that travel to visit a parent living far away or abroad may no longer be possible.   Other difficulties arise where one parent’s time with their child is supervised, or handovers cannot take place between parents due to previous allegations of domestic violence for example.

The current pandemic is unsettling for children and further changes in their lives and daily routine can exacerbate this.  Accordingly, if you have to make changes to your child’s usual time with their other parent, it would usually be sensible to explain the reason for the change to your child and vital to allow your child to keep in touch with the other parent, for example through telephone calls and live video platforms and apps such as FaceTime, WhatsApp, Skype, Zoom or Houseparty.

Throughout this blog I refer to the parents trying to agree arrangements between themselves. I appreciate that this is not always possible or permitted. If you cannot speak to the other parent, see if a third party such as a mutual friend or neutral person can help you to discuss the arrangements.  Apps such as Our Family Wizard that allow parents to communicate through software can also help.

Alternatively, arrangements can be agreed via family mediation or in family therapy, which is available remotely and can be very helpful.  In the longer term, arbitration could assist.

 

Do we have to continue with the existing routine/arrangements that I have agreed with the other parent?

These are unprecedented times and parents need to try to agree on what is best for their child, bearing in mind that children will be feeling anxious during this time of upset already. It might be best to try to agree new arrangements for the next three weeks or on the other hand you and your child might find comfort in the existing routine. 

 

How can we keep in touch remotely?

We are fortunate that today it is relatively easy to keep in touch with each other without leaving the home.  Now is the time to try the above mentioned video calling apps to help your child keep in touch with the other parent on a regular basis.  This will help to reassure the child and the other parent that the other is safe and well. The other parent and the child can even watch films together through apps such as Netflix party.

 

My child doesn’t go to the other parent’s house and the place they usually spend time together (e.g. leisure centre, restaurant) is closed.  What happens now?

Although many parks are now closed and playgrounds are out of bounds, the government guidelines still allow one period of exercise a day between members of the same household. As long as it’s safe and practical to do so, perhaps the child can go for a walk with the other parent.

 

What if I need more help from the other parent whilst our child is off school because I have to work from home or am an NHS or other key worker?

You may already have an agreement as to what the arrangements are during school holidays or a court order may set this out for you. If these arrangements suit you better than the term time arrangements, then you could suggest that you change to the holiday arrangements, if this is suitable for your and the other parent’s situation.

 

What if I or someone in my household is self-isolating, or my child or someone in the other parent’s household becomes ill whilst my child is with them and it necessitates self-isolation?

Parents will have to use their own judgement but if the child moves to another household where someone falls ill with suspected COVID-19 symptoms, that household will then have to self-isolate and so it would seem sensible for the child to remain there for the duration of the self-isolation, assuming they are well enough to care for the child.   It would also be sensible to ensure that both houses are as properly equipped for the child, as far as possible, in case the child has to stay there for longer than usual.

 

What if I am concerned that my child will catch COVID-19 from their other parent and I believe they should be self-isolating?

In such a situation, parents will have to use their judgement and discuss arrangements that will be in the best interests of the child.

 

I have a court hearing in a few weeks – will it still go ahead?

The detailed guidance from Mr Justice MacDonald on 23 March 2020 states that remote hearings in family law cases will be the default position.  If one or more of the parents in the case is legally represented, the applicant or the first represented party will be responsible for making the arrangements for the remote hearing.  If neither parent has a legal representative, the court office will contact the parents to explain that the hearing will be held remotely and with the details for doing this. 

 

Is Cafcass still operating?

Yes, Cafcass are currently operating remotely and continuing to represent children in family court cases.

 

What is the best way to talk to my child about what is happening? 

There is a wealth of resources out there providing guidance about how best to talk to children about coronavirus to keep them informed while reducing anxiety. We have listed some of these resources below:

 

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

Rachel Freeman is a Partner in Kingsley Napley’s family and divorce team. Her areas of practice include all aspects of private family work, with particular expertise in complex financial proceedings and arrangements for children. 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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