In March, during the days when many of us assumed that COVID-19 restrictions were a temporary situation that would be weathered quickly before returning to normal life, the government announced that, under specially created guidelines, a separated parent would be able to withhold child contact from the other parent if they had legitimate concerns about potential COVID transmission.
In theory, this sounded reasonable enough. However, given that it required the good faith of both parents, it is perhaps also reasonable to suggest that problems should have been foreseeable. Under this COVID-specific piece of family law guidance, parents were given the power to unilaterally “exercise their parental responsibility and vary the arrangement to one that they consider to be safe” – effectively, a green light to vary a child arrangements order.
When the guidance was published, most people believed that the COVID pandemic would be relatively short-lived, but there are now serious questions about whether the guidelines are still helpful, particularly as there is no foreseeable end to the situation and, most worryingly, in light of revelations about how the guidelines are being misused.
In fact, a number of family lawyers have expressed their alarm, adding their voices to those of domestic abuse charities who have repeatedly raised concern that the rules are being exploited by domestic abusers in order to withhold contact and to exert a potentially dangerous level of control.
Voices calling for an end to the COVID guidelines on child arrangements
Dame Vera Baird, the Victims’ Commissioner for England and Wales, has called for the guidelines to be dropped, particularly in light of the fact that the Family Court has recently demonstrated its ability to adapt to much of the new COVID-impacted reality – for example by using online and telephone-based court hearings as part of the COVID-era family law system.
Her concerns are shared by Labour MP Rosie Duffield, who recently attracted widespread national press coverage when she told the House of Commons that the guidelines were effectively an open ticket for domestic abusers.
There is a great deal of anecdotal evidence, including on online forums and comments sections of newspapers, detailing parents’ experience of being denied contact during lockdown. A Women’s Aid survey detailed widespread misuse of the guidelines by abusive partners who are either withholding contact and/or using them as a pretext for damaging and intimidating behaviour.
The evidence suggests that in numerous cases abusive partners have not returned children home as agreed and have restricted mothers' access to children because the guidelines were announced during a time when they had contact with their children. And, of course, it is not only mothers who have suffered under the guidelines. Many fathers are reporting that they have had their contact restricted, often because of allegedly false allegations.
Even in pre-COVID times, this would be difficult to deal with but since Cafcass (Children and Family Court Advisory and Support Service) is taking much longer than usual to investigate allegations, delays in achieving resolution are adding an extra layer of trauma to all concerned, including children.
Proponents of the guidance say that any parent concerned about another’s decision to withhold contact should challenge their actions by applying to the Family Court – but, for many, mounting such a challenge can be an arduous and stressful process that may be extremely difficult to achieve and fundamentally out of their reach.
Child arrangement order guidelines — clarity needed urgently
On October 1 the House of Lords listened to the experience of the victims of domestic abuse regarding their experiences in the family courts, with the Victims’ Commissioner for London, Claire Waxman, branding recent Family Court treatment of victims as nothing short of “state-sanctioned abuse”.
It must be recognised that, just as with every other area of life at the moment, the Family Courts face an imperfect situation. But, it is pretty clear that greater clarity regarding the function of child arrangement orders during the time of COVID needs to be prioritised. Until this happens there remains too much scope for cynical misuse against the very people that the family law system is meant to protect. The need for greater clarity is urgent and the government should recognise this fact.
