What impact can we expect the coronavirus outbreak to have in contact disputes?

23 March 2020

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Parents who no longer live with the mother or father of their child may be wondering what impact the ongoing public health concerns arising from the COVID-19 outbreak will have upon the care arrangements that operate in relation to their child.

For example, where a child lives primarily with one parent and has contact with the other, the parent with whom the child lives most of the time may be concerned about whether there will be a greater risk of the virus being picked up with their child being passed from one household to another. The other may worry that their time with their son or daughter will be restricted or, worse, stopped until the current crisis eases.

Family lawyers, like everybody else, are in uncharted territory at the moment. It is hard to predict how the courts would try to resolve this issue and balance the reasonable concerns and wishes of parents who wish to protect their child and maintain their relationship with them.

Below, we offer some thoughts on how this issue might be dealt with.

In most instances, both parents will have full parental rights and responsibilities in respect of their child. That includes the right and responsibility to have their child living with them, failing which to maintain their relationship with their child through direct contact with them. That right continues notwithstanding the recent advice to limit social contact, and it would continue in the event of a “lockdown” being imposed. A parent does not lose the right to have contact with their child as a result of public health issues, however serious they may be. However, that right must be exercised in a way that promotes and prioritises the welfare of the child. How might a court consider that that could be done in the present circumstances?

Information available to date seems to suggest that the risks which the virus poses to the health of children are limited, provided that they do not have underlying health issues which increase their vulnerability. For those children who fall into the latter category, clearly a cautious approach would be expected. However, even with children considered to be in the “lower risk” category, it is hard to imagine a court not looking to mitigate and minimise the risks of their contracting COVID-19 and it spreading as a result.

Arguably, the welfare of a child may be negatively affected if a relationship with one parent is “put on hold”, particularly at a time when other important parts of their life (extra-curricular) are likely to have been disrupted. However, if the arrangement continues, family members and close family friends would ultimately be exposed to a greater risk of infection. The general need and desire to “flatten the curve” would be likely to be in the back of the court’s mind when making any decision about the arrangements for a child to spend time with a parent.

The issues and questions posed by the coronavirus outbreak have the potential to make what are often anxious and difficult situations even more challenging. However, a child’s relationship with both parents can continue to be maintained and promoted in spite of these challenges if parents can agree on reasonable measures that take account of the current government guidance. That might involve things like:-

Agreeing that if a parent has been working or travelling abroad, that they will self-isolate for the recommended period until they can be confident that they are not showing symptoms of the virus;

Agreeing that a parent who is to have the child in their care confirms in advance of any handover that they are not suffering from any of the symptoms associated with coronavirus (eg. persistent dry cough, high fever);

Agreeing that the child will not be taken out to places during contact that will be busy and risk the spread of infection.

If physical contact has to be limited, stay in touch through regular Skype or Facetime sessions.

These are only examples, and other assurances might well work better for the particular circumstances of parents and their children. Where parents have separated and have children together, maintaining both parents’ relationship with their child is just one of the many challenges that the current public health concerns have brought about. However, it certainly does not have to prevent a parent from maintaining contact and a loving, nourishing relationship with their child.

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Jamie Foulis