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At Sinclairslaw we have been receiving many calls seeking advice about Contact Arrangements in the current Pandemic. Many families will have to make changes to the Child Contact arrangements that were in place, but how significant those changes actually are, will depend on the circumstances of the individual family.
We want to set out what we believe will be the most sensible approach in the current climate. We would urge you however to Telephone us or Email us if you require urgent specific advice and confirm our phone lines remain open in accordance with normal office hours and indeed, our Family Solicitors continue to offer full time telephone as well as remote support.
General Approach – be Pragmatic and Communicate Clearly
The President of the Family Division has published some brief guidance which supplements the general Government Guidance that everybody must follow during the current Pandemic.
The Governments Guidance on staying at home that applies to everyone who does not have symptoms or is not considered vulnerable, states that children can continue to travel between their separated parents. However, this does not mean that they just continue to do so. Parents need to make decisions that are safe in line with the guidance and be pragmatic about how to keep everyone safe.
If you or someone in your household falls into the category of extremely vulnerable or someone in the household develops symptoms, face to face contact will have to stop in line with the strict measures in place to protect vulnerable people and prevent the spread of the virus. In these situations, the timescales for how long they will affect contact vary so make sure you comply with the guidance and also stay up to date on the latest position.
Whether there is a Court Order in place or Contact is agreed informally, if it is possible for the arrangement to safely continue, they should. Parents should communicate clearly with each other that they believe this is possible and remind each other of the guidance about hand washing and staying at home. If Contact is taking place during the school week, inform the other parent of any arrangements the school has put in place and how to access any online learning available.
Communicate with the other parent about the reasons why you believe changes need to be made and think practically about how relationships can be maintained. Importantly, all parents should comply with the guidance and keep their children, themselves and the public safe.
A Court Order can be varied by agreement. If you and the other parent agree to vary any Court Orders, set out in writing (by note, email, text message etc) what the variation is so that you are both clear what is going to happen. Set a date which will be the latest date by which the agreement will be reviewed so that that you both have certainty but bear in mind that the situation is constantly changing, and it may need to be reviewed earlier.
If a Court Order is in place and it is possible to safely comply with that Order, do so. The Government Guidance states that children can travel between households where their parents are separated. However, if it is not safe to continue the order in line with the Government Guidance, you should follow the Government Guidance.
Some Changes You Might Want to Consider Are:
If you normally travel by public transport to get to handover, can either you or the other parent drive instead?
If contact arrangements involve a high frequency of travel between households, is there a different way of arranging contact to reduce the amount of time spent out of the house?
If you are worried about the other parent not complying with the guidance, have you told them this and sent them information about staying at home, hand washing etc?
If you have access to technology, have you explored the different ways in which the child and other parent can communicate with each other? Zoom. What’s App and Skype have never been more popular and of course there is Face Time.
Survivors of Domestic Abuse
Many of our Callers at Sinclairslaw are managing Contact Arrangements with abusers both informally and under Court Orders. The fact that there is a pandemic, is not justification to stop contact by itself. But there may be situations where you will need to do that. We cannot cover every situation and appreciate that it will be particularly difficult to agree alternative arrangements but read our general guidance above and it might work for you.
For some survivors, it will be possible to agree alternative arrangements but we have been told of abusers using the situation to continue their abuse by placing children at risk intentionally, insisting on arrangements continuing contrary to guidance, issuing enforcement applications unreasonably and keeping children.
If You Can’t Reach an Agreement
Whether or not there is a court order in place, everyone must comply with the Government guidance. If you have tried to reach an agreement with the other parent and they do not agree, you can use your parental responsibility to make a decision that is in the best interests of the child (see Paragraph 7 of the President of the Family Division’s Guidance).
Even in this situation, communication is extremely important. You should make sure you have communicated clearly with the other parent the reasons why you believe contact needs to change in line with the guidance and, if possible, suggest alternatives. Ensure that there is a written record of all such communications (e.g. by email, text message, WhatsApp).
Breach of a Child Arrangements Order (CAO)
If there is any Court Order in place and you and the other parent agree to vary it, then that is fine. If you decide not to follow the order without agreement, this is a breach of the order. However, you can exercise your parental responsibility unilaterally (this means without agreement) to keep everyone safe. You should make sure you are following the Government’s Guidance. The other parent may threaten to make an application to the court for an enforcement order.
When the court deals with enforcement applications, they give the parent who has breached the order an opportunity to explain why. If it is considered reasonable in the circumstances, the court will not enforce the breach. In the context of the Coronavirus Pandemic, the Family Court is likely to look at whether each parent acted reasonably in light of Government advice and Stay at Home rules in place at the time. This is why it is important to communicate with the other parent. For example, if you need to stop face to face contact because your new partner is considered extremely vulnerable, the other parent may not know this.
Where there is an Order for contact in place, the Family Court expects the ‘spirit’ of the order to be complied with. This means that is the court has said a parent should be having contact, even if the exact terms of the order cannot be complied with, the principle that contact should happen remains.
Some Issues to Consider when Thinking About Alternatives to Contact when there are Safety Concerns.
If you do not want the other parent to have your contact details, you could create an email address to use to set up a Skype account for video calls. When setting up email addresses and online forms of communication, we recommend using a computer instead of your phone if this is possible and logging out after each communication. It means you will avoid notifications coming up on your phone when the other parent has responded.
If you are proposing telephone contact and are worried the other parent will use this as an excuse to call you constantly, consider whether it is possible to get a cheap phone with a pay-as-you-go sim that you can turn on during designated telephone contact time and turn off after contact has taken place. This means the other patent can only call during contact time.
If contact normally takes place in the community, such as a restaurant or shopping centre, is it safe for it to take place at the home of the parent who is having contact. If this is not safe to manage contact over the phone, video calls or an app like Skype?
If your child is too young to participate in a telephone or video call, you may suggest sending regular updates with photographs.
If you are concerned about the other parent being able to see or hear inside your home during the video or telephone calls, can you designate a space for contact to take place such as next to a particular toy and remove anything that may identify where you are if that is an issue. Make sure it is not next to a window where the other parent may be able to identify the location from what’s outside.
If there is a non-molestation order in place which prohibits all contact between you and the other parent, do you have a family member or friend who could safely support communication in some way?
If contact usually takes place in a supported contact centre because of safety concerns, you are under no obligation to make the child available for contact outside the contact centre but consider whether it would be possible to safely manage telephone or video contact. If it is not possible to do this safely, then it will not be possible for contact to go ahead.
If a Risk Assessment/Court Order has concluded that the other parent poses a risk to the child or to you, and contact has been ordered to take place at a supervised contact centre for this reason, then it is not appropriate for contact to be supervised by family members or friends and should not go ahead.
These are many of the problems and potential difficult issues you may encounter but we would again emphasise that if you do experience any difficulties you can telephone us on 02920 388398, you can email our Jane Williams at firstname.lastname@example.org or Kelly Lewis at email@example.com and we will be able to advise you not only on Legal Remedies but, on the availability of Legal Aid or Public Funding and/or the comprehensive range of Family Law and Divorce Services which are available both in our Cardiff and Twickenham Offices.