Separated parents are understandably worried about sending children to spend time with their other parent. And those who are the other parent are equally worried about whether they will get to see their child. Should they go, or not?
There is no easy answer to this, and certainly no blanket answer, every case will be different and every day we seem to get different answers from the government. Some decisions will be easy of course: if you, your child or their other parent has, or may have, coronavirus you will be self-isolating and no-one will be going anywhere for the time being. We know that the risk to children is less than to the elderly and those with pre-existing conditions, so in many cases children should be going to contact in line with previous arrangements or court orders.
The latest advice (24 March 2020) from the President of the Family Division can be found here and basically says that children can be moved between their parents despite the Stay at Home Rules. It does not say they must be moved.
Both adults and children are reacting differently to this pandemic: some are happy to be off school or work, others are terrified by the whole situation. If you or your child are truly frightened more than most you may be more inclined than others to keep your child at home. If so, think calmly about what you will tell the judge if your ex complains later, and make some notes now.
Most sensible parents will be able to talk and co-operate and work things out between them in the best interests of their children and everyone else. This will include checking out what the other parent is going to do regarding observing all sensible precautions recommended to prevent the virus.
Unfortunately there are many difficult people out there with whom it is not possible to co-parent, so the virus will cause a lot of additional anxiety to the protective parent. One of their biggest worries is likely to be whether their child will be returned at the end of the other parent’s time, or whether they are likely to say the child is ill and refuse to return them.
There is also the worry that a narcissistic parent won’t keep the children safe and follow the guidance about the coronavirus because they will believe that they themselves will be immune from the virus and they don’t care about anyone but themselves, even their own children. Unless they are a covert narcissist when they will be the biggest victim out there, the most likely to catch it and if they do they will have it ten times worse than anyone else.
Fathers for Justice, the extremist campaign group, say “Mothers are opportunistically using #COVID2019 as an excuse to cancel contact between children + fathers, claiming “self isolation”. But they give no evidence in support of their allegation. Personally, I wouldn’t blame any mother for using the virus as an excuse to give their children a break from having to see an abusive father, but I would advise her to cover her tracks carefully as members of this organisation are more likely than others to try and enforce the order. Though how successful they could be at a time of court closures remains to be seen.
What will happen if I break my court order?
Your court order wasn’t made with the coronavirus in mind, and the message from the President is that if an order needs to be changed, the spirit of the order should be kept by making safe alternative arrangements for your child. We’re all in unchartered territory here and no-one knows what, if anything, the courts will do about breaches of orders. But here are some general principles:
Reach agreement with the other parent
In principle, if you and your ex agree to do something different to what is in a court order there will not be a problem, as your ex won’t complain later about something they’ve agreed to now. However, if your ex is or was abusive towards you then you normally need to be careful when agreeing with them to vary a court order, as they could use it against you at a later date, especially if it is an interim order.
However, we are not in normal times now and if you and your ex come to an agreement to vary the order because of the coronavirus there’s not likely to be any comeback further down the line. But if you reach agreement on the phone I would advise you to email or text a confirmation that you’re agreed to vary the order temporarily due to the coronavirus.
It’s not a criminal matter
The family court is a civil court which means it’s not a criminal offence if you don’t comply with a court order. Equally, it means if your former partner breaks a court order it’s no good going to the police about it because it’s a civil, not a criminal matter: the police will simply tell you they can’t help and you need to go back and ask the family court to enforce its order.
Two exceptions to this are:
It might be contempt of court
Although the family court could punish you with a fine or imprisonment it’s still not a criminal matter and it’s very rare for breach of a child arrangements order to be dealt with this way.
Is there a penal notice attached to your order?
A penal notice warns you that you may be sent to prison if you do not comply with the order. Again, this is not a criminal matter because if you fail to comply with a court order which has a penal notice attached the police will not get involved, it is up to your ex to apply to the family court for you to be sent to prison.
If there is a penal notice on your children order it is likely that you have already breached your order on more than one occasion and this is the court’s warning to you that you are unlikely to get away with it again. So if your ex does not accept a variation of your order due to the coronavirus it would be prudent to take legal advice before refusing contact.
The most likely outcome of breaking an order due to coronavirus is
nothing. The courts were almost at breaking point before the virus and are unlikely to have much time to devote to actions taken by parents in extraordinary times. So provided you return to the court ordered arrangements as soon as the crisis is over, and offer the best possible alternative arrangements in the meantime, you are unlikely to be in trouble for breaching an order. That said, there’s always the possibility of a rogue judge with time on their hands so this is not a guarantee!
Be sure to offer alternatives eg phone and video calls
What about my court hearing?
Most hearings are now supposed to be taking place remotely but as yet it’s far from clear how this is all going to be managed or whether the courts are really geared up for this. Another question that remains to be answered is how it’s going to work for litigants in person. And of course there will be judges, court staff and lawyers who are sick or self-isolating.
So if you have a court hearing in the near future, do be prepared for it not to go ahead, or to go ahead by phone or video link, and keep an eye on your in-box/post. The government website should be updated at 9am every morning so do consult that too.
If your hearing is a fact finding hearing or a final hearing where witnesses are to be called, it is more likely to go ahead in court than shorter directions appointments which are supposed to be done remotely.
If you want or need your case to be adjourned because of the coronavirus, there’s a little good news: the Lord Chancellor has said that in certain cases the court fee can be waived for applications to adjourn a family hearing.
Court staff will consider the information provided, for example:
Applications need to contain as much information as possible. It will not be necessary to provide medical certificates from a GP. The decision will remain with the judge, who will consider whether the hearing could take place using audio or video.
As always, it’s best if you can reach an agreement with your ex that the hearing should be adjourned.
If you need any help with regard to your contact/shared care arrangements, or court hearings listed in the next few weeks, I’m not going anywhere, so please don’t hesitate to get in touch.