Sir Andrew McFarlane, who is in charge of family courts in England and Wales, gave this and other guidance to parents in April 2020 due to the increase level of disputes concerning contact arrangements for children during the current Covid-19 crisis.

He urges people to focus on the child’s welfare and to try and ensure children are in touch with both of their parents. Communication between the parents is the key.

He goes on to say that the country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.

Whether there is a court order or an informal arrangement in place, the government guidelines are that children under 18 can travel between their separated parents, if safe to do so.

This does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s  parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

A child’s safety with regard to the virus is a matter for parental judgment, as is the use of practical alternatives to minimise any potential risk, and to alleviate any potential concern the parties may have. This may mean parents coming to an agreement to facilitate contact in a different way, for example to change the mode of pick up and drop off to avoid public transport.  They could change to video/telephone contact as opposed to direct contact as a short term agreement, if for example one of the parents is a key worker or there is a vulnerable person in the household.

Essentially, a sensible assessment of the circumstances should be made. It is a matter of personal judgement and agreement between the parents, if possible, with the welfare of the child always being of paramount consideration.

This of course only applies to contact between two separated parents. Contact with respect to grandparents, or extended family must still follow government guidelines on social distancing, which is for everyone to avoid close contact with anyone you do not live with.

In some situations, it is clear that contact will have to be restricted and a common sense approach will need to be adopted by both parents.

The government has from Monday 1 June updated its guidance with the aim to return life to as nearly normal as possible. This  includes more relaxed rules, but the ultimate message of staying alert, controlling the virus and saving lives will continue to require parents cooperation.

The key aspects of the new guidance include:

Spending time outdoors, including private gardens and other outdoor spaces, in groups of up to six people from different households, following social distancing guidelines;

Going to work if you cannot work from home and your business has not been required to close by law;

More shops opening, with a plan for more to do so later in the month;

Children in early years (age 0-5), reception, year 1 and year 6 can return to childcare or school in line with the arrangements made by their school;

People can be tested as part of the test and trace programme, which will enable them to return to normal life as soon as possible, by helping to control transmission risks;

This guidance is for the general public who are fit and well and can be reviewed on the government website, on the following link:

https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing

There is separate, specific guidance on isolation for households with a possible coronavirus infection.

For example, if you, your child, or anyone in your household has coronavirus symptoms, and you are self-isolating or indeed, if anyone in the other parent’s household has symptoms or they are self-isolating, contact should not take place. But this will of course be for only a set period of time in accordance with government guidelines, currently at least 7 days if you have symptoms and 14 days if you live with someone who has symptoms.

If contact is suspended for a short period of time due to the above, alternatives should be discussed, for example, telephone or video contact.

It is important to distinguish self-isolation and social distancing which has been mentioned above from shielding, which is advice for people at high risk from coronavirus to stay at home to avoid getting the virus.

This can cause a bit of a stir for parents who need to weigh up the risk of allowing contact to take place if they are living with someone who is shielding.

The Government guidelines for those living with people that are shielding are that if one person in the household is shielding, the rest of your household do not need to start shielding themselves, but they should do what they can to support the person shielding and to carefully follow guidance on staying alert and safe (social distancing).

The guidance recommends that the person shielding should minimise the time other people living with them spend in shared spaces such as kitchens, bathrooms and sitting areas, and keep shared spaces well ventilated. They should keep 2 metres (3 steps) away from people they live with and everyone in their household should regularly wash their hands with soap and water for 20 seconds, avoid touching their face and clean frequently touched surfaces.

Following these guidelines would allow parties to come to an agreement to keep contact with the children open. However, once again, a sensible risk assessment taking into account all circumstances should be made by both parents.

Despite the easing of lockdown restrictions, it is clear, from some children contact disputes thus far, that this may not necessarily ease parental concerns. Unfortunately for some, this is having a knock on effect on children maintaining any form of meaningful contact with their separated parent.

In an ideal situation, both parents would be able to discuss the children contact arrangements and come to a sensible solution, putting the welfare of the children ahead of any other need. However, there are of course some situations where either an application to the Court for a Child Arrangements Order or enforcement of an existing Order may be the only recourse.

For some, doing something for the sake of the child, even when you they don’t want to, is just not feasible.

To discuss these or any other children or family issues, please contact Shahzea Tahir on sat.solicitor@gmail.com or visit Rights of Women website on www.rightsofwomen.org.uk for further details on our free confidential adviceline for women.

When parties are unable to agree, provided they satisfy certain procedural requirements, they will have recourse to the Courts to help them come to an agreement.

Parents can make applications to the Court under Section 8 of the Children Act 1989 for various Orders, some of which are:

Parental Responsibility Order

Specific Issue Order

Prohibited Steps Order

Child Arrangements Order

A court will only make an order if it thinks that would be best for the child and will look at what is called the welfare principle.

The Welfare Principle

When a court determines any question with respect to the upbringing of a child  the child’s welfare is always the court’s paramount consideration (Children Act section 1).

This involves the Court having regard to:

The ascertainable wishes and feelings of the child concerned in light of his age and understanding;

His physical, emotional and educational needs;

The likely effect on him of any change in his circumstances;

His age, sex, background and any characteristics of his which the Court considers relevant;

Any harm which he has suffered or is at risk of suffering;

How capable each of his parents are of meeting his needs;

The range of powers available to the Court in the proceedings.

Some people have the right to apply for an Order, and some people must first get the permission of the court to make the application.

Parental Responsibility (PR)

Parental Responsibility is defined as all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property ( Children Act 1989).

Mothers automatically have PR.  If the father is married to the child’s mother at the time of the child’s birth he too will have PR. Unmarried fathers will only have automatic PR if the child was born after 1st December 2003 and the fathers name is on the birth certificate.

An unmarried biological father can acquire PR by entering into an agreement with the mother of his child, by making an application for a Parental Responsibility Order to the Court, or by subsequently marrying the biological mother of his child after the birth.

Other people can also acquire PR for your child, including stepparents, grandparents, or same-sex partners.

If you have PR your most important roles will be to provide a home for the child and to protect and maintain the child.

When parents are separated, they do not lose PR. A separated parent will have to be included in any important decision about the child. This does not apply to routine decisions and consent will therefore not be required for day to day routine matters. If it transpires that you cannot agree with respect to a major decision, like which school the child should go to, any major medical treatment, leaving the country/moving away or changing the child’s name/surname for example, you can apply for a Specific Issue order or Prohibited Steps order to the Court. The Judge will then make a decision which is your child’s best interests.

Specific Issue/Prohibited Steps Order

A specific Issue Order is essentially an order sought from the family court to determine a specific question which has or may arise in connection with any aspect of parental responsibility for a child, where the parents with PR are unable to agree. For example, you may wish your child to go to a particular school, have a particular medical procedure/treatment or change their name.

A Prohibited Steps Order on the other hand is an order granted by the court in family cases which prevents either parent from carrying out certain activities or events with their children without the express permission of the other parent, for example to prevent them from changing the child’s surname or removing them from the country.

Child Arrangements Order

Having PR does not give an absent parent an automatic right to spend time with the child.

A Child Arrangements Order is an Order that regulates with whom a child is to live, spend time or otherwise have contact with any person.

A child’s mother, father or anyone with PR can apply. Other people, like grandparents, can also apply but they will need to get permission from the Court first. You must show you have attended a meeting about mediation first, except in certain circumstances (for example in cases of domestic abuse).

To make any of the above applications, you fill have to fill in a form called C100 Court form. The original form, together with 3 copies and the fee is then sent to the nearest court that deals with cases involving children. If you do not have parental responsibility, you will also need to file a Form C2 for permission to apply for a Children Act 1989 order.

Once the application is issued CAFCASS ( Children & Families Court Advisory and Support Service ) will start making some basic safeguarding enquiries and you may receive a phone call from them.  This is followed by a first hearing is called a First Hearing Dispute Resolution Appointment (FHDRA). The parties will be encouraged to resolve the matter by agreement.  If this proves unsuccessful,  the District Judge will make directions to progress the case to a fuller hearing and may require CAFCASS to prepare a report on the issues at hand.  If there are factual disputes the Court may decide to deal with those first and set a Fact Finding Hearing. Once the Court is satisfied with the facts, a Dispute Resolution Appointment is set, which considers the recommendations from CAFCASS and a further opportunity is given to the parties to resolve matters. If matters are not agreed, the case will go to a Final hearing and each party will give evidence under Oath and the recommendations of the Cafcass officer will be considered carefully. The Judge will then make his decision.

It is also worth noting, once you have an Order, it can be varied or enforced by making an application to the Court.  Even if an order is proved to have been broken if there is a 'reasonable excuse' this will be considered by the Court. Although each case will depend on the facts, for example, not sending your child because of self-isolation etc, is likely to be a reasonable excuse for not sending a child to contact / back to the other parent. In those circumstances, the parent breaking the Order must still show reasonable steps to minimise the impact, for example, utilising video/telephone contact instead. Alternatively, it may be that the current Order is no longer practical to follow, in which case the application to vary the Order can be made.

In any application or decision, the Court makes, the point to always bear in mind will be the welfare of the child will be of paramount consideration.

To discuss these or any other children or family issues, please contact Shahzea Tahir on sat.solicitor@gmail.com or visit Rights of Women website on www.rightsofwomen.org.uk for further details on our free confidential adviceline for women.

Women in their 40’s have enough stress as it is, children, work, health, you name it we’ve got it! But for some,  an added one can be their relationship with their spouse.

Formalising the termination of a relationship, in other words, getting a divorce or separation, doesn’t have to be a daunting and scary task. If you know the basics, it is much easier to manage, and less stressful to talk about, and in fact formalise.

Most women, will think about separation or termination of their marriage at least a few times in their marriage, for various different reasons. Those that decide there is no other way forward, even after a separation, will need to think about getting a divorce.

Suffice to say, you are not alone. According to the Office of National Statistics (18 October 2017), there were 106,959divorces of opposite-sex couples.

Marriages of same-sex couples first took place on 29 March 2014 and as such the first divorces recorded between same-sex couples were in 2015. Nicola Haines, Vital Statistics Outputs Branch, Office for National Statistics comments in relation to women, “ Our latest marriage figures show that of the 4,850 marriages formed between same-sex couples in 2014, 56% were female couples. In 2016, there were 112 divorces among same-sex couples, with female couples accounting for 78% of these.”

So, what are the reasons for divorce, and what do you have to ‘prove’?

Firstly, to get a divorce in England or Wales, you must have a marriage that is legally recognised in the UK and be married for more than one year.  You must then be able to show that the marriage has permanently broken down.  In a nutshell, grounds for divorce that show permanent and irretrievable breakdown can be any of the following;

Adultery

Your spouse has committed adultery and you find it intolerable to live together.

Unreasonable Behaviour

Your spouse has behaved in such a way that you cannot reasonably be expected to live together.

Two-Year Separation with Consent

You have been separated for 2 years and your spouse agrees to divorce.

Five-Year Separation 

You have been separated for 5 years.

Desertion 

Your spouse deserted you more than 2 years ago.

Some of the grounds are a little easier to prove than others and will of course depend upon your own personal marital relationship. Your legal adviser will be able to help and guide you through these grounds and establish what is the best one to use in your particular case.

Once the paperwork is completed, your Divorce Petition along with the divorce fee will be sent to the Court.  Once checked by the Court, they will issue the Petition and send it to your spouse.  Your spouse will then have to complete the Acknowledgment of Service Form, to confirm they have received the divorce paperwork and confirm whether they agree with the divorce proceedings, or whether they intend to defend the divorce.

If undefended, the next step will be to apply for the Decree Nisi, which in effect is asking the court to consider all the documentation submitted in support of your divorce. If everything is in order, and your Decree Nisi is granted, this essentially means the Court has granted you an entitlement to a divorce.

You can then apply for the Decree Absolute. This is the final step to dissolve the marriage and can only be done six weeks and one day after the Decree Nisi is granted. It therefore, gives you some time to be absolutely certain that you want to terminate the marriage.

There will undoubtedly, be other things to think about during the course of the divorce proceedings, for example, arrangements for looking after any children, child maintenance for the children and/or the division of money and property. I will endeavour to touch upon those things in separate articles.

I would like to reiterate that you are not alone!

For readers and subscribers of the Latte Lounge, I run a free telephone consultation clinic (limited to 20 minutes). Please email me on Shahzeat@duncanlewis.comto arrange a consultation about your divorce, separation or any other family law related issues.

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