Managing Custody in Lockdown: ‘Separated Parents Are Using Lockdown To Hoard Not Just Pasta, But Their Children’

Sarah Hutchinson, Family Law Partner and Mediator at Farrer & Co, says she's seeing parents behaving badly - and offers advice on how to move forward.

Updated on15th May 2020 at 3.29pm

The latest scientific evidence suggests that children of all ages tend to have less severe symptoms if they contract the coronavirus. But, as a family lawyer and mediator, I see the virus causing children a different – but concerning – type of harm.

During this crisis, separated parents are continuing to juggle work, home-schooling and home life between them, putting their children first wherever possible. However, others are using this as an opportunity to hoard not just pasta, but their children.

Some parents are using the crisis as a means of preventing their children from seeing the other parent or trying to enforce arrangements that are not practical. Others are even prepared to risk the safety of the other parent, or wider family, with their irresponsible behaviour. This sorry situation is only compounded by the fact that the courts are not able to provide the assistance they usually offer.

What are parents supposed to be doing about custody arrangements?

The Government is clear that children can move between their parents’ households. The President of the Family Division has also given detailed and helpful guidance to separated parents on compliance with Family Court Orders which is available online.

However, the situation relies on parents putting aside their insecurities and communicating so they 'act safely and sensibly'. Sadly, I see many parents who cannot.

The President’s Guidance is open to interpretation and seems to afford some parents the opportunity to ignore court orders and prevent a child from seeing another parent, or from seeing them as much as they usually would or should. It is also allowing parents to delay anticipated changes in arrangements, such as a gradual increase in a child’s time with a parent.

There have – of course – been good reasons for children not to move, or to move less frequently, between their parents’ homes, for example if a child has become unwell or if someone in the household has developed symptoms. That said, the 14-day self-isolation period has enabled some parents to prevent a child from seeing the other parent for two weeks by simply alleging someone in the household has a temperature; it’s impossible to know if that parent is being truthful or not.

In households with a high risk or vulnerable individual (e.g. a parent with a chronic lung condition or an elderly grandparent), separated families have to consider carefully how to protect those individuals. The majority of families do not have second homes where vulnerable family members can live, and the bitterness between some separated couples is such that this risk appears irrelevant to them.

Some parents are using the crisis as a means of preventing their children from seeing the other parent.

The latest update from the Government suggests some children may be able to return to nursery and school as early as 1st June (starting with reception, year 1 and year 6). But what can be done when parents disagree about whether their children should return? This already difficult question is made more complicated by conflicting messages from the Government, which appears to be on the one hand encouraging returning to school, but on the other saying that parents will not be fined if they don’t send their children back.

Working together

The one clear message from the Government is that this will be a long and unpredictable journey, which could well take us into 2021. This means that, wherever possible, parents must work together - irrespective of their marital status, living situation or an existing court order. But if parents cannot respect and trust each other in times of good fortune, how can they be expected to do so in a crisis? How can parents resist the primal urge to keep their children with them, which they may well interpret as acting 'safely'?

As many parents navigate our new world with no or limited childcare, they should prevent the ‘mental load’ of organising the children’s lives falling largely on one parent’s shoulders. The burden should not automatically sit fully with the person who usually has a more agile working arrangement or who does not work outside of the home – and who is often the mother.

How should separated parents manage the new lockdown rules?

Each family should agree what works best for them depending on their specific circumstances. Some pointers that could help families come to terms with the ‘new normal’ are:

Be a team. Kindness and understanding are what children need from their parents in this unsettling time - not just towards them, but to each other. Work together, try to listen to one another and the children, and understand each other’s anxieties, doing what you can to alleviate them.
Be creative. If a child cannot be with a parent for a period of time, both parents should be creative and support the child’s relationship with the ‘absent’ parent. This might include video calls, writing letters or emails, or spending additional time with the other parent when possible.
Be practical - not tactical. Consider whether children can spend longer periods in each parent’s home, so there are less frequent handovers. These should take place by car if possible, and social distancing should be observed. Don’t be tactical – this is not about lining up a future court application. Additional time with one parent now does not mean it will necessarily be that way forever: school and work will one day return to normal.
Be longsighted. Remember that, whilst one parent’s behaviour can have a devastating effect on the other, the real victims are the children. At a time when children need their parents to build bridges, yet more damage is being done. For some families, it will be irreparable – don’t let it be yours.