A tolerant approach

Covid-19 appears to have caused family law to experience a flux between two extremes. Litigation continues, while divorce and financial matters increasingly stall as individuals look inwards to weather the coming months; and domestic violence tragically soars and children issues escalate.  

Many separated parents are faced with maintaining status quo as far as possible, at a time when normal life couldn’t be much further than the ‘norm’.

There is an abundance of additional issues which could impact on current child arrangements and/or increase existing tensions.

Each are as varied as any one set of individual circumstances might be, but the most likely include the following: Historic or ongoing issues of domestic violence between separated parties may mean third parties have been integral in facilitating handovers. Social distancing rules inevitably impact on such arrangements.

Where contact arrangements take place via contact centres which are now shut, the current situation for the parent who will miss direct contact may be extremely difficult.

That parent may feel the other will not encourage indirect contact to take place; or indirect contact may not be possible – because of the age of the child(ren) or other safeguarding concerns. In some cases, one or both parents may be affected by a change in working patterns. This may affect the usual contact arrangements and create difficulties which need to be reasonably negotiated and somehow overcome.

Indeterminate school closures will not only create problems in terms of handovers which took place via school; they may also create tensions where one parent has less contact with the child(ren) – which is unavoidably heightened during a period of school closure.

They may seek to negotiate a change to arrangements or redress any perceived or genuine imbalance by the other parent having additional time with the child(ren). Guidance issued by the family court regarding compliance with child arrangements orders has made clear that while there is an exception to the mandatory ‘stay at home’ requirement, this “does not 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 guidance suggests “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.”

While pragmatic, this advice is perhaps overly optimistic. Having any kind of practical conversation is going to be problematic for many parents who have already sought court intervention following their inability to reach an agreement about what is best for their child(ren). 

The guidance stresses that its “key message should be that, where the covid-19 restrictions cause the letter of a court order to be verified, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child”. 

It’s hoped that in many cases, the prevailing circumstances will encourage an attitude of tolerance and flexibility among separated parents, which will continue once the crisis is over. However, in other cases, existing problems may be exacerbated further by the stresses this pandemic is causing, which will worsen and even entrench over time. 

Pulling together in attempts to find sensible and workable solutions is not only easier said than done, it’s sometimes impossible without court intervention. 

In those cases, historic and entrenched mistrust and anxieties can’t be swept away by covid-19 or by adopting a ‘blitz spirit’.

During these unprecedented times, we must remain grateful for the court’s ability to determine the issues that must be made to ensure that children’s welfare remains the paramount consideration. 

Pippa Allsop is an associate at Michelmores michelmores.com

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