CHAPTER ONE – PRIVATE CHILDREN LAW CASES AND IMPACT OF COVID-19
Many of you who are family law practitioners, will know that enforcement of child arrangements has got to be the most difficult areas of family law to be able to deal with, as there are often very strong emotions that are bedded in. This makes it very difficult for clients to be able to make compromises for the benefit of the child. Sometimes, clients will find it very difficult to be able to get past the hurt, upset, anxiety, anger, and sometimes bitterness, so as to see what is the child’s best interests when it comes to agreeing and complying with child arrangements. Matters relating to enforcement and the impact of Covid-19 will be considered in this chapter.
WHAT ARE THE OPTIONS FOR ENSURING
COMPLIANCE WITH ORDERS?
We have all had situations whereby we have had to consider what options are available to ensure that ‘contact’ takes place, as per the court order. As a reminder, many of you will be aware of the various options available, such as the following:
Children being joined as parties through the r. 16.4 Family Procedure Rules 2010 (FPR 2010) procedure
Directions being made under s.37 Children Act 1989 (CA 1989)
Switching of Child Arrangements
Committal to prison for breach of an order and/or undertaking
These options above have their own difficulties. When it comes to seeking a costs order for example, although Part 28 FPR 2010 provides, at rule 28.1, for the court to make, at any time, such order as to costs as it thinks just, the reality is that if a court was to make a costs order, against the ‘resident’ parent for not abiding by requiring them to make the child available to spend time with the other parent, the costs order could inflame matters, and exacerbate the situation. Similarly, although there have been cases where the court have switched child arrangements, as recently as in the case of Re H (Parental Alienation)  EWHC 2723 (Fam), there are always risks associated with switching residence. The court would need to carefully balance the associated risks in deciding whether to go with this option. In this case for example, this was the 6th set of private law proceedings between the parents in relation to the child, aged twelve. The child had been having regular contact with his father and his paternal family, which had been of good quality. Subsequently, the direct contact stopped. At paragraph 13, Keehan J, who heard the case, emphasised that the expert evidence was such that the child may, on the surface, appear to be fine emotionally, but he was not. If the court were to contemplate transferring residence from the mother to the father, there were risks to the child; he may run away and he may not settle in his father’s care if it was not properly supported. In terms of the risks associated with ‘parental alienation’ the instructed expert opined that the mother was firmly entrenched in her view, and was most unlikely to change. It was advised that parental alienation was very harmful to a child. It skewed the child’s ability to form any and all sorts of relationships, and was not limited to the failed relationship with the other parent. In this case, the expert stated that there was now, no other option, but to transfer residence to his father in the welfare best interests of this child. If, short of a transfer, an attempt was made to re-establish contact, the child, whilst remaining in his mother’s care, was likely to become even more entrenched against his father.
HOW DO YOU ENSURE COMPLIANCE OF COURT ORDERS GIVEN SOCIAL DISTANCING RESTRICTIONS ARE IN PLACE?
During the middle of March 2020, when ‘lockdown’ was announced in England and Wales, immediately thereafter, there became apparent difficulties surrounding the practical aspects of reconciling imposed social distancing restrictions, and how parents were expected to abide by existing orders for child arrangements. Some obvious issues that arose were:
What was to happen for example, if there was in place, a shared child arrangements order, which specified living with? (what used to be called a ‘shared residence order’, until the amendments bought in by the Children and Families Act 2014, on 22nd of April 2014)
If the children were spending one week with mother, and the other week with their father, in different households, which household (if any), was to take priority?
What if a child was currently residing in household A? Were they to stay there, by default, or was it dependent upon where they sought to reside?
What about if one parent had the benefit of the child arrangements order, specifying spending time with? (What used to be called a contact order, until the amendments bought in by the Children and Families Act 2014, on 22nd of April 2014). Was that order still to be honoured?
If the child was residing with mother for example, and the child arrangements order required for mother to make the child available to spend time with father, each and every Tuesday and Thursday, between the hours of 4 – 6pm, was this to happen?
These, and other questions became some much more prominent and real issues as a result of the social distancing restrictions. Taking the last of the above examples, relating to the contact which is to happen every Tuesday and Thursday, one could imagine that the mother may rely upon Covid-19, to justify the child must not be going to see and spend time with father because of the social distancing restrictions? Mother may be justified and excused for her genuine anxieties and worries if she was to allow here child to go in such circumstances, but what if she was to use the pandemic as a strategic ploy, to ‘block’ the contact with the father, with no or very little regard to the child’s needs of maintaining a relationship with the father? We can all imagine that this is a real possibility in some, and it is hoped, a limited number of cases.
These and other questions led to a lot of anxiety and uncertainty amongst parents across the UK, and it was on 24 March 2020, that Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, handed own some very vital, and essential guidance in this regard. This is considered further below.
This was handed down by Sir Andrew McFarlane (President of the Family Division and Head of Family Justice) on the 24 March 2020 The full guidance is available at the following link: https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/
In this guidance, the President set out that during the current Coronavirus Crisis, some parents whose children are the subject of Child Arrangements Orders made by the Family Court, have been concerned about their ability to meet the requirements of these court orders safely in the wholly unforeseen circumstances that now apply. Therefore, this guidance is offered, although the circumstances of each child and family will differ, any therefore any advice can only be in the most general form.
The President has set out that parental responsibility for a child who is the subject of a Child Arrangements Order (CAO) made by the Family Court, rests with the child’s parents, and not with the court. It is emphasised that there is an expectation that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.
The President set out that parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the UK government on 23 March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales [‘PHE/PHW’].
At this point, before I go further into the guidance by the President, the reader should note that this guidance was issued in March 2020, at a point where the Stay at Home rules were set then. You do need to bear in mind that the Stay at Home Rules have since been updated, principally on the 13 May 2020, and more recently, on the 1 June 2020, with more changes due on the 15 June 2020. At the time of writing, on the 10 June 2020, we have in force, the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 5) Regulations 2020, and the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020, applicable in Wales and England respectively. These are covered in more detail below, and in later chapters.
At the time, in 24 March 2020, the President set out that the Stay at Home Rules had made the general position clear, which was that it was no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
The Government guidance was issued alongside the Stay at Home Rules on 23rd March 2020, which dealt specifically with child contact arrangements. It stated that ‘Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.’ The President stated that this ‘establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.’
The President has set out that the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.
The President has set out that where parents, acting in agreement, exercise their PR, to conclude that the arrangements set out in a CAO should be temporarily varied, they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent
In cases involving intractable contact disputes, many family practitioners reading this book, will appreciate that sometimes, there will be no agreement to temporarily vary the child arrangements order. What is to happen here? The President has stated that where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then the President has set out that the parent may exercise their PR, and vary the arrangement to one that they consider to be safe. The guidance goes onto provide that if, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.
The President has set out that where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect ‘alternative arrangements’ to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.
In this guidance, the President has emphasised that the key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.
Since this guidance was issued on the 24 March 2020, we have of course seen some more easing of the social distancing restrictions across England and Wales. In England for example, there was some easing on 13 May 2020, and then in both England and Wales, there was a further easing 1 June 2020. However, even with the amended regulations that came into effect on 1 June 2020, there is still the provision for permitting contact as set out below. Firstly, in Wales, the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 5) Regulations 2020, as of 1 June 2020, set out, at regulation 8 (1), that during the emergency period, no person may, without reasonable excuse, leave the area local to the place where they are living or remain away from that area, without reasonable excuse. Regulation 8 (2) gives various examples of ‘reasonable excuse’ including, in subparagraph (o), in relation to children who do not live in the same household as their parents, or one of their parents, continue existing arrangements for access to, and contact between, parents and children. For the purposes of this paragraph, ‘parent’ includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child.
In England, there are similar provisions contained in the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020, which, as of 1 June 2020, set out that references to a ‘parent’ of a child as to include any person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child, and for these purposes, a ‘child’ is a person under the age of 18. Regulation 6 (1) provides that no person may, without reasonable excuse, stay overnight at any place other than the place where they are living, and regulation 6 (2) sets out that the circumstances in which a person has a reasonable excuse. This includes cases where, in subparagraph (f), the person is a child that does not live in the same household as their parents, or one of their parents, and the overnight stay is necessary to continue existing arrangements for access to, and contact between, parents and children.
HOW WILL THE 24 MARCH 2020 GUIDANCE BE RELIED
UPON IN SUBSEQUENT COURT HEARINGS?
It remains to be seen, that once we are firmly out of lockdown, and courts are able to resume back to normal, in so far as is possible, there will possibly be some backlog of court hearings to deal with. It may be that there will be a proliferation of cases, with the non-resident parent taking the children’s case back before the court for enforcement of child arrangements. The parent may be doing so on the basis that the parent with care relied upon the Covid-19 pandemic, to unilaterally, vary the child arrangements, but the complaint by the applicant may be that in doing so, the resident parent acted irresponsibly, and inappropriately. We may possibly get many cases being brought, possibly determined through live evidence, on questioning whether a resident parent was appropriate in unilaterally varying the child arrangements during the lockdown. It is respectfully submitted that those of you who are representing family law clients at this stage, need to ensure that you are firmly advising on the very useful guidance given by the President, and in particular as the President has emphasised, ‘ … If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family….’
In my view, the parent with care will clearly need to be in a position to justify their decision making. In particular, there may well be questions as to what have they done to minimise the disruption in the child arrangements during this time? Have they offered other forms of contact in the meantime, such as video and/or telephone contact for example? If not, why not?
The President’s Guidance states that where it is felt that there is a need to vary the arrangements, the parties concerned are expected to consider alternative arrangements, so as to not establish, but to maintain regular contact child and the other parent. There is the specific reference to the methods utilised, such as remote methods of communication, including FaceTime, WhatsApp, Skype, Zoom and other video, and if this is not possible, by telephone. Many of us as who are family practitioners, will have used some, if not all of these methods, for the purposes of communication, whether in our professional or personal lives, and again here, when it does come to enforcement, I would suggest that the court will want to know how flexible the parent with care was in offering these alternative facilities? It is possible that the parent with care may rely upon the fact that they simply did not have a mobile or home phone available, with sufficient data, add-ons, a dongle, or access to a Wi-Fi signal, so as to enable this to be done. It may well be the case that the onus will be on the person who has not permitted contact to take place, to show, more likely than not, why they did not put into place, the necessary steps to ensure that indirect contact could occur.
By way of conclusion, it can therefore be seen that there may be potentially a lot of litigation coming out of the current pandemic as a result of child arrangements. This remains to be seen further.