COVID-19: Making contact with children work amidst social distancing

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By Jackie Mensah, Family Solicitor for Bennett Griffin

The impact of corona virus on family life is something which we are all dealing with in some shape of form. Whilst chatting with a care worker this week, she explained that because of her exposed risk to the virus, as a keyworker, she had made the decision that her daughter should stay with her grandparents for the time being, with just long-distance, remote contact with her mum. Tough decisions are being made at this very difficult time.

Grandparents have told me of their sadness and sense of loss, as to being denied contact with their grandchildren, due to self-isolation but also as a result of estranged parents resurrecting old disputes which lead to a unilateral blocking of indirect contact also, so no telephone calls or social media.

In light of the COVID-19 outbreak, guidance has been issued by the President of the Family Courts, which emphasises that parents must abide by the rules on staying at home and away from others issued by the government on 23 March. However, government guidance establishes an exception to the mandatory stay at home requirement, where parents do not live in the same household, so that children under the age of 18 can be moved between their parents’ homes.

It goes on to clarify that this is not a green light to children absolutely being moved between homes. Parental responsibility (PR) rests with parents and not with the court. Whether a child is to move between parental homes is a decision for the child’s parents to make after assessing the circumstances, including the child’s health, the risk of infection, and the presence of any recognised vulnerable individuals in either household.

The guidance further highlights that parents can exercise PR and agree that the terms of a child arrangements order (CAO) should be temporarily varied. Any agreement should be recorded in a note, email or text message. Where parents do not agree to vary the arrangements in a CAO, but one parent is concerned that complying with the CAO would be against advice from Public Health England or Public Health Wales, that parent may exercise PR and vary the arrangement to one that they consider to be safe.

Since the school shutdown, I have advised a dad as to resuming contact with his children, on the mother’s instigation, because she has had to accept that she needs help with them now they are at home all the time. This is a complete reversal of the approach adopted by the mother since they separated a year ago, whereby she was continuing to block contact, without any cogent reason. My advice to the dad-? Proceed positively, but with caution.

Furthermore, the guidance states that if, after the event, the actions of a parent acting unilaterally are questioned by the other parent in the Family Court, the court will assess 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.

Where, due to parental agreement or otherwise, a child does not get to spend time with a parent as ordered, the courts will expect alternative arrangements to be made to maintain regular contact between the child and their parent within the stay at home rules. For example, facilitating indirect contact by FaceTime, WhatsApp Video, Skype, Zoom or other video connection or, if that is not possible, by telephone.

Where COVID-19 restrictions cause an order to be varied, the spirit of the order should be delivered by making safe alternative arrangements. Common sense will prevail and practicalities must be in line with prioritising health.

I am an experienced Family Lawyer and a parent so please feel free to contact me, Jackie Mensah, on or call on 01903 229914 if you have concerns about how contact is working, or the fact it is not happening at all right now. Perhaps you are wondering how the current arrangements can be sustained until school attendance resumes, that being possibility as late as September.  I look forward to hearing from you and helping you to make things work better for you, your children and grandchildren.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.