The lockdown children
Sarah Jane Lenihan navigates the law surrounding child arrangements for feuding parents during the pandemic
At the beginning of the covid-19 lockdown, when prime minister Boris Johnson asked everyone to stop non-essential contact and unnecessary travel, Stowe Family Law immediately noted a rise in enquiries regarding children matters.
Sadly, some parents took this as a green light to cease contact between their children and the other parent. The enquiries came flooding in from existing and new clients querying if this was right; and what they could do about it.
When considering any issue in children cases we must always revert to s1(1) Children Act 1989 which states that “the child’s welfare shall be the court’s paramount consideration”.
Each case has to be reviewed on the basis of its own specific facts. At first, it can be difficult to determine if a parent is acting in the best interests of the child or just using the situation as an excuse to make it difficult for the other parent to spend time with the child.
Section 1(2A) of the 1989 Act guides us that, unless the contrary is shown, the involvement of both parents in the life of the child concerned will further the child’s welfare.
The covid-19 lockdown led us as family lawyers to question whether the pandemic was a good enough excuse to justify the prevention of a child spending time with a parent due to a risk of harm. This was an issue both in cases where there was a court order in place and in circumstances where there was an informal arrangement for contact.
In that first week, I worked with clients where some parents were making difficult and selfless decisions to not spend time with their child, or to move the child to live with the other parent due to the nature of their work, for example, nurses or midwives.
However, I also worked with clients where the other parent seemed without good reason – and with a history of stopping contact – to cease contact once again.
Initially, there was little guidance for family lawyers as to how the court would deal with an application for contact or a breach of an existing order. That changed on 23 March when the government produced its guidance, Staying At Home And Away From Others, which made it clear that: “Where parents or someone with parental responsibility do not live in the same household, children under 18 can be moved between their parents’ homes to continue existing arrangements for access and contact.”
This announcement helped those parents who were genuinely worried but wanted to follow the guidance to restart that relationship with the other parent. But for others, there were still issues; and refusal to allow contact continued despite this clarification.
Pre-lockdown, an application to the court on a children matter was taking between eight and 10 weeks to be listed. So the question back then was whether the pandemic would be over before we even got before a judge. The courts had started to shut down and hearings were being vacated at short notice, leaving it unknown when they would be relisted.
The official line was that children cases were a priority, but unless it was a final hearing my experience was that they were being vacated. In some cases, a parent had not seen their child for eight weeks before the listed application; and now they did not know when it would be relisted again. The impact of this was devastating for the parents and the children involved who were being refused a relationship probably with little explanation
In the intervening periods, we attempted to get video calls set up for the parent and children whose time was being restricted.
This allowed them, for instance, to play games, watch films together and discuss homework. In these cases, I found that the parents were genuinely concerned about the welfare of the children.
In other cases, even video calls were not allowed. My view is that this revealed that the intention behind the prohibition of time between parent and child was not one of genuine concern over welfare.
On 24 March 2020, Sir Andrew McFarlane, president of the family division and head of family justice, produced short and concise guidance on compliance with family court child arrangements orders.
This made it clear that “if, after the event, the actions of a parent acting on their own… are questioned by the other parent in the family court, the court is likely to look to see whether each parent acted reasonably in light of the official advice and the stay at home rules in place at the time, together with any specific evidence relating to the child or family”.
This guidance also made clear that where current arrangements could not take place, there was an expectation that regular contact was maintained remotely or via telephone.
Sadly, in some cases this was not enough to ensure that contact was maintained; and even if we got to court, if a parent refused to hand over the child there was little that could be done immediately.
Hearings that the court could be convinced were urgent and that all parties were willing to undertake remotely were taking place on video calls or via a hybrid system (ie where some parties and/or representatives appeared in person in court and some via video link or telephone).
Unfortunately, we are now seeing this being used as an excuse for appeals, but whether any of these will be successful is not yet known.
My experience has been that the court has ensured, before starting a remote hearing, that everyone is willing to engage in the hearing remotely. If there is a refusal, the judge has given consideration to whether it is appropriate to proceed and then given justification for continuing, for instance, because of reasons of urgency or on the basis that refusal is merely an attempt to delay proceedings. Alternatively, the judge has considered relisting in person because, for example, it was not considered urgent or appropriate to continue remotely.
As lockdown restrictions continue to ease, the court is happy for directions and pretrial reviews to take place remotely, but any final hearings are now being listed in person.
From my experience, for those parents who do not always agree on what is in the best interests of a child, there will always be disputes whatever the situation. The added complexity of emotions can also make it difficult for them to make decisions.
As legal advisors, we must ensure that we stand back and do not get involved in the emotions of the client and, instead, consider how the situation would be perceived by the court.
Giving clear advice to clients at the outset (even if it is not what the client wants to hear) can often help guide a case to an amicable resolution.
Sarah Jane Lenihan is a partner at Stowe Family Law stowefamilylaw.co.uk