Separated parents and Covid-19: Child custody during the pandemic

Following the government’s introduction of lockdown to combat coronavirus (Covid-19), the President of the Family Division, Sir Andrew McFarlane, was quick to respond. He issued a guidance note on contact arrangements for separated families, which states: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

The guidance further suggests that parents, not the court, are responsible for deciding where a child should be and for how long. Using their common sense, parents can decide whether or not a child can move, taking all relevant circumstances into account, such as the child’s health, the infection risk and whether there are vulnerable individuals living in either household.

The government’s “Stay at Home” requirement has since been revised to a more nuanced “Stay Alert”, and there is now an increased level of freedom to leave the house for work, although the accompanying public health advice remains strict in terms of social distancing. While the child’s best interest should always be the paramount concern, problems inevitably arise in some situations, particularly where there is a history of parental conflict.

Work and custody agreements

In this context, some parents are understandably worried about their child’s safety in relation to their partner’s job: the lack of social distancing at work, or on the way to work, which puts them at potential risk of contracting Covid-19. So how can they prove that their concern is genuine rather than an excuse to prevent the other parent seeing their child – will it depend on different interpretations of what is safe?

The guidelines are clear: if the parent with whom the child lives says that he/she is exhibiting symptoms the self-isolation period should be observed, but following that the child can see the other parent.

Alternative forms of regular contact – FaceTime, Skype, or telephone calls – should be used and when the child has recovered, missed time can be rescheduled. If such contact is neither allowed nor reinstated, one parent is manifestly frustrating contact on purpose.

A parent who is concerned about their child’s visit should speak to the other party about self-isolation arrangements. If they self-isolate for the requisite incubation period, the child would be extremely unlikely to develop symptoms while they are in their care. Any attempt not to return the child could be evidenced to the court, if necessary, by the other parent. All arrangements should be documented in writing as evidence to support any potential application.

On a practical level, another question arises: will this only work if both parents agree about safety? At this difficult time, there needs to be an element of mutual trust and flexibility with arrangements. To allay concerns, boundaries should be agreed of what is and is not allowed.

It is self-evident that parents should act sensibly when making decisions regarding arrangements for their child, including where and with whom they spend time.

If parents cannot agree about what is safe and one parent fears that their child is at risk, or that certain actions may place other members of their household at risk, then either parent can exercise their parental responsibility unilaterally. However, this should only be a last resort. It is always best to consider alternative ways of resolving matters instead, perhaps by instructing a mediator to help discuss the options and find a way forward that is in the best interests of the child.

*Lindsay Yateman and Naomi Lelliott are specialist divorce and family lawyers at Excello Law.

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