With daily updates to the Government’s advice and the announcement that schools are closed, there are lots of questions from parents who operate a shared care arrangement in light of the disruption and risk presented by COVID-19.
There are many difficulties that are arising as a result of the Government advice on isolation, travel and closures. We have considered some of the problem areas and steps that parents can take.
The effect of school closures will be the most immediate and significant change for many parents operating shared care arrangements. Parents will have to consider how their children will be cared for. Coming to an agreement is likely to involve some difficult conversations where parents have work and other commitments.
Many parents also use school as a method of handover for the children between periods of care. School closures are likely to mean parents have to consider alternative handover methods. There may even be court orders in place requiring parents carry out handovers at school. Parents will need to consider how this will be managed and whether, for example, the use of a third party is necessary.
Many parents will have plans to take their children on holidays at Easter and in the not-too-distant summer period. Where parental responsibility is shared, it is normally necessary for both parents to agree to allowing the children to leave the country, even just for a short break unless:
- there is a Court Order granting permission regarding a specific holiday; or
- there is a Child Arrangements Order in place – this entitles the parent in whose favour the order is made to take the child out of the country for up to four weeks without the permission of the other parent.
Without legal authority, taking children abroad may be construed as child abduction and a breach of a court order.
As a result of the risks posed by COVID-19, it is likely that many parents will want to restrict planned holidays with the other parent. There will be situations where parents have previously provided consent to a holiday but would now have serious reservations because of the risks of doing this. Whether or not it is appropriate to take children abroad is going to depend on the facts of a given situation and weighing the situation against factors such as the current Government guidance around travel. The Government is now advising British nationals against all but essential international travel - this going to influence a court’s decision and parents should reflect on this.
Given the rapidly increasing rate of new cases being diagnosed, many parents want to take steps to avoid exposing their children to unnecessary risk. Many parents will be social-distancing or self-isolating and will think this is also the best option to protect their children. There will also be parents who are worried that the other parent is not taking sufficient precautions, placing children at unnecessary risk and they may want to suspend contact until the situation improves or the other parent changes their behaviour. Or there is the possibility that some parents may refuse to return children after contact with the reason or excuse that they are self-isolating. All these situations may lead to conflict.
Certain groups of people at higher risk, such as pregnant women, have been encouraged to self-isolate for extended periods of up to 12 weeks. There will be circumstances which have an effect on a parent’s ability to continue with current shared care arrangements and some parents will be worried about breaching the terms of an order.
Parents should take steps to come to agreements between themselves and make contingency plans. These may be difficult conversations but may avoid the need for conflict or an application to court later down the line.
What to do if agreement can't be reached
Where there is a dispute that cannot be resolved then this might require an application to court so the matter can be determined by a judge. There are a number of possible applications:
- for a parent seeking to restrict the other parent from doing something with the children, such as taking them abroad, it may be necessary to apply for a Prohibited Steps Order;
- for a parent who can’t obtain the permission of the other parent to take their child abroad or take some other action, and they think their refusal to consent is unreasonable, then they may consider applying for a Specific Issue Order.
In any case, the court’s main priority will be the welfare of the children involved. The steps the Government has recently taken to close schools and the advice to self-isolate, social distance and work from home in response to the risks of COVID-19 will strongly influence decisions the court has to make about the welfare of children. Those decisions must ensure that a child’s health and safety is not compromised.
Another factor for parents to consider when faced with a dispute will be the pressure that COVID-19 puts on the court system. Parents may want to consider other options such mediation, round-table agreements and arbitration as quicker, cheaper and more amicable ways of resolving disputes.
Burnetts are specialists in family law and children cases. The firm continues to operate and is continuing to support its clients at this difficult time. If you have a query, please feel free to contact us on 01228 552222
and one our Family team will be happy to discuss this with you.