Same Sex Relationships
Prenuptial & Postnuptial Agreements
Contact with a non-resident child in a ‘
As of Thursday 5th November, new lockdown regulations came into force in England that placed restrictions on whom an individual can meet in both a private and public sense. Once again, central government took the decision to curtail individual liberties, on a level previously unthinkable, in order to allow families to come together and enjoy something resembling a ‘normal’ Christmas.
This is, of course, on the basis that the restrictions are lifted as promised on the 2nd December. For many parents who share care responsibilities, the central question has now become what this ‘new normal’ will look like in terms of spending time with a non-resident child over the Christmas period.
During the first major lockdown, the President of the Family Division released guidance on complying with existing Child Arrangements orders during the pandemic. In this, Sir Andrew McFarlane (P) emphasised that parental responsibility for a child lies with their parents. As such, during a pandemic on this scale, effective communication between carers becomes crucial in effecting the best interests of the child and spirit of the arrangements order. Importantly, the President emphasised Government guidance meant that, whilst moving a child to another parent was an exception to the stay at home order, this did not
such action being undertaken. Whilst compliance with any existing Child Arrangements Order was preferable, given the current condition, this would not always be possible. As such, parents should behave reasonably and sensibly when assessing risks to the child, themselves and anyone else in a relevant household when sharing contact with a child.
As such, regular and effective communication between carers is essential in giving effect to the spirit of the Child Arrangements Order during this unprecedented period. Whilst England may be free of stringent lockdown regulations come Christmas, it is apparent that any return to a regional tiered system, taken alongside differing rules by each of the devolved administrations in Scotland, Wales and Northern Ireland, will complicate the situation for parents sharing care of a child. Indeed, given the nature of Christmas as a time when large families tend to come together, it is no longer as simple as a child merely joining one household as was the case in March. Indeed, if my own Christmas experience is anything to go by, there would be numerous ‘bubbles’ interacting with each other once the ‘bubbly’ has started to flow. How then should separated parents regulate contact with a child in these circumstances?
The obvious first conclusion is that difficult decisions will have to be made. In all probability, regional rules will be in force restricting the number of households that can come together (some iteration of the ‘rule of 6’) whilst wide-spread international travel seems increasingly unlikely. As a result, what would have once been an ‘open-door’ style Christmas will become ‘invite only’. In terms of planning for child arrangements, this gives parents the opportunity to plan and form a risk-assessment on the basis of knowing exactly which bubbles will be interacting with each other come 25th December. This is, of course, very important when households contain vulnerable individuals as is often the case at Christmas.
Whilst such assessments can be made in advance, parents should also be mindful of any residual rules when lockdown is lifted on the 2nd December. This is especially relevant if parents live in differing parts of the UK and, as such, cross border travel is required. Although it is likely that moving a child for care purposes will form an exception to any travel ban, this is something to consider when planning ahead to minimise risk for anyone else in the household. If new rules are modelled on the previous March guidelines, this means that moving a child
form an exception to a travel ban but this will not, in itself, necessitate such action.
Furthermore, parents should also carefully research and consider the rules regarding whether children contribute to numbers under the ‘rule of 6’. This has caused confusion for families throughout the UK given the seemingly contradictory rules pronounced by individual devolved administrations. In Scotland and Wales children under 12 are exempt from counting towards the rule of 6. In England, children do count towards the rule of 6 when indoors. Parents living under differing Coronavirus administrations should be mindful of these rules when planning and communicating plans for the Christmas period. Parents should also remember that these rules are liable to change in the near future and, as such, plans should be flexible and responsive to any changing Government guidance.
Taking all this, the first thing to say is that the President’s guidance in relation to the first lockdown assumes even greater importance this Winter. Parties should be in regular communication with each other to maximise the best interests of the child and give effect to any existing Child Arrangements Order. Evidently, in many cases, those best interests will be served by having contact with both parents at Christmas. If agreements are made between parents, these should be recorded in some way in case of later dispute; this could be formal or informal as per the President’s guidance in March. Whilst this seem a pessimistic manner to approach communication, such recording serves to give parties an accurate reflection of what was agreed. This is especially important if the agreement is made well in advance of the Christmas period.
Parents could also think about other means of facilitating contact. The pandemic has forced many of us to ‘get to grips’ with software such as ‘Teams’ and ‘Zoom’; believe me, I didn’t know what these were before March. If both parents fully discuss and agree a sensible risk assessment, and this concludes that moving a child between households is impractical, then an agreed time for online contact over Christmas may go some way to mitigating the effect on both a child and parent. In this sense, even if the terms of the Child Arrangements Order cannot be fulfilled to the letter, the spirit of co-parenting and contact is upheld to the benefit of all parties. Indeed, if such communication is proven effective and results in workable compromises, this could form the basis of greater cooperation moving forward between separated parents. This, inevitably, would serve to maximise the welfare of a child and give the coparenting relationship a firmer base from which to thrive.
The key message to take from pre-existing President’s guidance is that communication between the parties is key to forming pragmatic and workable compromises to the challenges posed by the Coronavirus pandemic. This is the only way to centralise the welfare of the child and form solutions to mitigate any unfortunate consequences of Coronavirus regulations that constitute the ‘new normal’. With forward planning and careful consideration of new rules post-2nd December, it is hoped that we can learn to adapt to these challenging times and still afford children a relatively ‘normal’ Christmas with both parents; albeit without a trip to Santa’s grotto.
How can we help?
Please get in touch to arrange a consultation.
+44 (0)20 3709 7236
+44 (0)7771 608319
68 Brook Street
Follow us on Twitter
We are proud to be a member of:
Association of Lawyers for Children
Finalist - Boutique Family Law Firm of the Year 2021