COVID-19 and Parental Responsibility – what if the other parent is not acting responsibly?
Inevitably when parties separate they worry about what will happen when their child or children are with the other parent. For example, will they make sure that they do their homework, will they feed them healthy meals, will the general routine be upheld?
In some circumstances, there are also more serious concerns about whether or not the children will be properly protected from dangerous situations or risk. In those cases, time with one parent may need to be restricted or supervised.
During the current Covid-19 crisis this remains the case and, to a certain extent, it may well have magnified issues.
It is a constantly moving situation and at every juncture there have been new questions thrown up. I have looked at some of these below finishing with the current position of “lockdown”. Whilst some may be irrelevant at the moment they may arise again depending on the government policy on exiting “lockdown”.
Wash, wash, wash your hands
One of the first lines of attack in relation to Covid-19 was increased hand washing. Children were taught about the correct method in school and the expectation is that parents would support it.
In normal circumstances failing to get a child to wash their hands would not be a reason to prevent them spending time with a parent but arguably the situation is different now. I think it would, however, be difficult to evidentially prove that hand washing is not being done and this issue alone would not enough to justify a child to be prevented from seeing a parent. It may, however, form part of a bigger picture if a parent’s refusal to accept the seriousness of the situation puts a child at risk.
Older people have been identified as being more at risk from developing complications and therefore many parents have had to take the difficult decision to keep their children away from them. However, some parents may want to continue to use their parents for childcare or simply want them to continue to visit them (outside of a “lockdown” scenario)
The “ordinary” starting point would be that when a child is due to spend time with one parent then it is that parent’s responsibility to find alternative care if, for example, they have to go to work. It is also their decision who they choose to visit.
During the period where schools were closed but it remained “business as usual” for many parents this created some difficulties. If the other parent can offer care to the children during school hours should they be with them rather than putting a grandparent at risk?
Ultimately decisions in relation to children should be led by what is in their best interests. In this scenario the primary motivator is to protect that grandparent. It is difficult, therefore, to see what the correct answer is.
Social distancing and travel
If there is a gradual exit from the current lockdown one can imagine that questions may be raised (as they were in early March) about whether a child should attend a birthday party or other large gathering or go on holiday.
These events are unprecedented and therefore there is no real case law to consider. Parents will need to be guided by the underlying principle of the Children Act of what is in the children’s best interests and it will be a balance.
Care should be taken not to involve the children in any dispute and try to force the issue by telling them about an event so they can exert pressure on the other parent.
There was initially some confusion about “lockdown” but it now appears to be clear that children can move between homes and the guidance from CAFCASS suggests that the usual pattern should be followed, if possible.
Questions are thrown up, however, about circumstances in which one parent may not be social distancing and therefore the child could be put at risk. If the parent cannot remain in isolation because they are a key worker then it is hard to see why they should be penalised for this and not see their child but the situation may be different if one parent is simply choosing to ignore the government guidelines.
What to do if you cannot agree
In theory, at least, you can apply to court to determine the disagreement but, realistically, the court system is going to be under pressures of its own and by the time any application would be resolved there is every chance that it would then be irrelevant.
In the most serious of circumstances you may have no other option but there may be other alternatives such as discussions between solicitors, mediation or other alternative dispute resolution that should be considered. If you have any concerns at all your first step should be to take specialist family law advice.