There are unprecedented pressures on family law professionals, parents, and the Family Court. Rather than throwing up our hands in horror, family lawyers have opportunities now to reduce conflict when negotiating child arrangements for separated families.
The CoVid19 Outbreak has created a significant increase in confusion and distress for parents. Family lawyers have received multiple enquiries about where children should stay, amid complaints that neither children are being returned nor being made available to spend time or live with the other parent. The social distancing measures are challenging enough for children who face disruption to their education, health and care arrangements, without the added burden of parental conflict.
On 24th March, Sir Andrew McFarlane, President of the Family Division, clarified that while children under 18 can be moved between their parent’s homes under the government guidance issued alongside the Stay at Home rules, this did not mean children must be moved between homes. If in agreement, parents could informally vary an order during the lockdown. However, if there is disagreement and one parent is concerned, that parent may exercise their parental responsibility and unilaterally vary the arrangement to one they consider is safe. Parental responsibility “rests with the child’s parents and not with the court”. The Family Court will only be able to look at the position retrospectively in deciding whether each parent acted reasonably.
The Remote Access Family Court announcement on 23 March, just prior to the Prime Minister’s lockdown announcement, purported “to continue substantially the full operation of the family justice system… notwithstanding the COVID-19 pandemic”. But following the above McFarlane guidance, HMCTS issued its Civil Court listing priorities on 1st April which emphasised that only priority work must be done. The upshot of all this, and my experience so far, is that many Family Court hearings are being postponed.
Child arrangements processes are in any event being steered away from court. On 2 April, The Private Law Working Group (PWLG) recommended a “radical system change for the benefit of future generations”. Sir Andrew McFarlane called for public education about the effects of parental conflict and professional support for families other than lawyers or judges so that courts should be seen as the last port of call when disputes arise.
None of these measures by themselves will prevent parents in dispute being positioned or hostile during the lockdown. What can be done? There are useful approaches that can be taken now, that reduce adult conflict and ameliorate the pressures created by the lockdown and beyond.
Firstly, the CAFCASS guidance issued on 20th March provides helpful tips for co-parenting. These include: maintaining a sense of routine for children, including meal and bed times; maintaining the child’s usual routine of spending time with each parent; complying with a Child Arrangements Order unless it would put the child or others at risk; and communicating clearly and honestly with the other parent if one parent is unable to maintain the child’s routine due to illness, self-isolation and non-availability of people who ordinarily support the child’s contact.
Secondly, there are a multitude of family law dispute resolution processes available where parents feel unable to negotiate without help. These include not only the established practices of mediation, collaborative law and arbitration, but newer methods such as parenting co-ordination. A therapeutic approach can be especially beneficial in resolving child arrangement disputes.
Finally, I am hopeful the collaborative approach needed to reduce confrontation and conflict between parents during the lockdown, because of the limited availability of the Family Court, may prove a lasting and kinder way to achieve better outcomes for the children of separating families.