Lockdown & Child Arrangements – What about children travelling abroad for contact with a parent?
In this blog Marcia Drummond discusses the implications of lockdown on child arrangements, particularly where contact between a parent and child usually takes place abroad.
Family lawyers and separated parents breathed a sigh of relief when the UK government provided clarity that children, under the age of 18, of separated parents could move between households for the purposes of contact. However, it begs the question of whether it can be a feasible for a child to continue to travel overseas to maintain contact with a parent who resides in a different country.
Before lockdown it was not uncommon for a child (or parent) to make regular trips abroad for the purpose of contact – particularly where there is a court order requring this in place. But, with the complication of lockdown, can the non-resident parent insist on the maintenance of such an arrangement and thus justify a ‘breach of court order’ if the other parent will not relent? Obviously, such a debate is superfluous if the other country’s border is closed but what if that is not the case and flights are still operational?
Whilst the UK government has not provided specific guidance on this issue, the Foreign and Commonwealth Office advised that educational establishments should not travel abroad with children – indicating that such travel is not considered essential. With the UK government’s support that a child’s contact with a parent is essential, surely travelling to maintain contact (particularly in compliance with an existing court order) is justifiable. Although many may consider such a question warrants no explanation, there are some parents battling with this very issue.
Even if you are able to navigate the complexity of maintaining safe distancing at an airport, how do you manage this when on the aircraft? Significant space is required between passengers (we are told 2 metres). How would it be possible not to be at risk of catching any virus in such a restrictive space? We are told that wearing personal protective equipment does not afford the protection that ‘staying at home’ would.
An aggrieved parent who wishes to enforce an existing order that the child should travel overseas must do so with caution. Where a case is before family court judges it is the court’s role to ensure that the “best interests of the child” are being met. It is unlikely that a judge would agree that it is acceptable for a child to travel abroad, with all the known risks, and with the possibility of being stranded abroad as being in their best interests. This is particuarly the case when online contact via FaceTime and Zoom, for example, is available as a means of maintaining contact whilst the lockdown is in place. The President of the Family Division and Head of Family Justice (The Rt. Hon. Sir Andrew McFarlane) set out specific guidance including:
“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. Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23 March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales.
Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO [child arrangement order], the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules….”
It must be right that it is in the child’s best interests to maintain quality contact with both parents despite this public health pandemic. However, during this period both parents are expected to show creativity, work together and demonstrate the ability of being child focused. Indirect contact such as video and telephone calls, whilst accepted that it is not a substitute for direct contact, is a viable option. Or, perhaps where feasible the non-resident parent could consider spending time in the UK thereby alleviating the expectation of the child travelling overseas.
There are undoubtedly situations which may justify the requirement for a child to travel abroad during this time. Every case is different and would need to be considered on its own particular facts.
For further information and advice on resolving your family law issues during lockdown, please contact Marcia Drummond or any of our top London divorce lawyers and family mediators on E: firstname.lastname@example.org or T: 020 7420 5000.