In the spring we commented on stories of estranged couples using lockdown to alter childcare arrangements unilaterally.
While the intention behind some of the changes sought by parents might have been influenced by some malign motivation, as some media outlets suggested, the majority were simply not clear on how lockdown would affect their existing arrangements.
Helpfully, the guidance issued by Sir Andrew Macfarlane, the President of the Family division and Head of Family Justice, clarified how parents should comply with court orders governing child arrangements, introducing a much needed dose of rational thought to an area fraught with emotion.
Although we all hoped at the time that the world would return to some semblance of normality, events have proved otherwise. Although restrictions eased over the summer, many of us remained caught in an uncertain limbo, trying to fathom out how carry on with our everyday lives while remaining Covid-aware. For parents adjusting to working from home while having to factor in changes (or reductions) in their usual childcare arrangements this has been an immensely difficult and frustrating period. Now, we are in a four-week national lockdown with a chance that it could be extended for longer.
Shared care agreements can be adjusted
For divorced parents this has been even harder, despite government confirmation that any imposed travel restrictions do not extend to the movement of children as part of shared care arrangements between parents. Any arrangements that had been altered during the first lockdown period may well have been readjusted a number of times to accommodate differing work schedules, reduced childcare facilities, a need to self-isolate or quarantine, or the inability of a grandparent or other older relative to continue taking care of grandchildren. There may be others who are only just now having to contemplate shared care arrangements.
As we noted in our earlier article on varying a court order governing shared arrangements, parents are advised to exercise their judgment and behave sensibly and responsibly when agreeing how to share the care of the children between them. Any couple who completed a Statement of Arrangements after they divorced should be aware that this is not a court order and so not legally enforceable and they can, providing they both agree, change those arrangements as often as is necessary to suit them and their children.
Communicate, communicate, communicate
The key is good communication and it is also good practice to record the arrangements made and any future changes to those arrangements in case either party queries the decision further down the line. Of course, there will also be times when one parent cannot, for reasons of illness, or work deadlines, look after the children as agreed. This scenario needs to be discussed and a back-up plan made if possible. It is critical that the welfare of the children comes first in any discussion, particularly at the moment when there is so much uncertainty.
If a couple is struggling to agree, it may be helpful to involve a family lawyer in discussions about sharing childcare arrangements and this can be done informally or via mediation. Such involvement can bring a degree of objectivity to what can be a very emotional topic and it is a much more sensible (and much less expensive) route than going to court to formalise any arrangements. A court order is enforceable and, although varying a court order is currently acceptable providing there is a clear, written rationale for doing so, it is by its very nature less flexible than a shared agreement.
We do not underestimate the strain under which separated families are struggling: the change in routine, the concerns over job security and the effect of restrictions on external childcare support are all taking their toll. However, by ensuring that children are the focus of all discussions and that all arrangements are made with their well-being in mind, parents have a better chance of arriving at a resolution to everyone’s benefit.