Bonus Episode - Shared care of children while on lockdown

In the light of Monday's announcement by the Prime Minister Boris Johnson, how do the rules apply to shared care of children. How should you go about the handover and maintain social distancing? Are there any excuses for using the lockdown to prevent your ex from seeing their children? Tamsin Caine talks to Katie Welton-Dillon of Hall Brown Family Law about the new rules, how they apply and how to work with your ex for the best outcome for all.

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Katie Welton-Dillon has specialised in family law from the outset of her career. As a trainee solicitor in 2009, Katie worked alongside the managing partner and head of family law at a top Manchester-city based firm. Upon qualifying in 2011, Katie worked at a niche and specialist family law firm, developing her skills in all areas of family law including divorce (including those with an international element), complex financial settlements and particularly cases involving children.  Katie has joined Hall Brown to head a specialist children law team.

Katie has become known for her knowledge, passion and experience of dealing with cases involving children including the arrangements for a child following the breakdown of relationships, child relocation (both internally within the jurisdiction of England and Wales and internationally), child abduction (the removal of a child from their resident country without the other parent’s consent) and dealing with complex cases involving domestic abuse, substance misuse and mental health issues.

• Email: katie.welton-dillon@hallbrown.co.uk
• Direct: 0161 804 9718, Mobile: 07526 175824

Transcript

Hello and welcome to the Smart Divorce podcast. This podcast is for you if you're thinking of separating, already separated or going through divorce. My name is Tamsin Caine, and I'm a chartered financial planner. We'll speak to    some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively. Now, over to today's guest.

Hello and welcome to a very special edition of the Smart Divorce podcast. I'm joined today by Katie Welton-Dillon from Hall Brown Family Lawyers and we're gonna have a chat about some of the issues that have been coming up around children of divorced couples and the arrangements. Thanks for joining me, Katie!

Katie
No problem. Thanks for having me Tamsin!

Tamsin
No problem at all! So, the big news of the day started with Michael Gove's announcement this morning. Do you wanna run through what he said?

Katie
Yes. So, just kind of step back from that, where it was unclear, is that the government published some written advice to try and assist and everyone. And in a footnote there was a little asterisk that said that under 18s could move between homes were applicable. So it wasn't set out in this advice. And actually, this footnote caused small problems and particularly with the use of the phrase "where applicable." Because in the current climate, what on earth does that mean? on So, then Michael Gove was asked to clarify and obviously initially said to Good Morning Britain, that the children shouldn't we move between homes. And there was then a period is absolute chaos where everyone was panicking, that they wouldn't see their children and the thankfully he did clarify on BBC breakfast and then he subsequently tweeted and apologised, that he wasn't clear. And so at the moment, it has properly been confirmed that children can move between their two homes. We're still kind of seeking for some formal confirmation of it rather than a tweet or and interview and I anticipate that there might be something that comes out soon, and we're also kind of pushing for cafcass who are the courts' advisers as well  to release something; they did release on a document a couple of days ago just to try and help families. But obviously, now it's out of date. So hopefully in due course they will do that. And that will help. But there is clarity now that children can be between homes and they should be where possible.

Tamsin
Okay, so we have current rules that say that we're only allowed to leave our houses to go and get food or to go to work or not any nonessential journeys. So if I'm living in Manchester and my ex is living in London, for example - this isn't the case. but just let's have a look at an example. What on earth will be the situation for a family in that position?

Katie
Yeah, that's such a difficult question, because 1) there wasn't any guidance  and 2) this is a completely unprecedented situation. So there isn't any tools that family lawyers can fall back on. And, you know, there isn't any case law, legislation to help. I think that my view, and it's one I wish I wouldn't have. But I think when you read what and the advices from the government, as you just outlined on that, if there is a significant distance between families, then I think that the arrangements couldn't continue, and certainly not if there was frequent visits. I don't think that's the intention of the government that people are travelling for that, particularly not on public transport. In my mind, that would not come under the very strict criteria of who should be using the tubes and the trains. And I know that's probably very difficult, as I said, to people to hear, but I think that's my view and I think the court may agree with that.

Tamsin
Okay. And we were talking also just before we started recording about some other difficult situations when children normally have supervised visits. Do you want to just run through your thoughts on those?

Katie
Yeah, there are a whole host of reasons why people sometimes have supervised contact and obviously when there is a risk of harm. But sometimes it can be simply when there's been a quite a big break in the child not seeing parents, someone is there to kind of assist those arrangements. The difficulty now is that those supervisions, contacts are either done via a contact centre which are now all closed or they undertaken by an independent professional person normally an independent social worker. Now, obviously, they are not going to.. they can't put themselves in that position now. So sadly, I think those people in those circumstances are going to basically hear that they can't see their children. And myself and my colleagues have been trying to look at other alternatives because we have a few cases where this is applicable. But there just doesn't seem to be a safe alternative at the moment, which is you know, obviously very sad for the child or the children and for the parents as well.

Tamsin
Yeah, of course, it's not, it's not a nice position to be in. And I guess if there was someone in that position who felt that they were being unfairly dealt with, then there is little ways of recourse at the moment in terms of court procedures and so on, isn't there?

Katie
Exactly, so if we had a situation, we know where Corona virus wasn't happening at the moment, and the parent wasn't seeing the child in accordance with an agreement or an order, if it was that an order was in place, would be applying back to the court for enforcement. And the courts have a duty to deal with those applications quite quickly. And then in circumstances where there isn't an order in place we'd be advising the client to issue an application to obtain an order so that it doesn't happen again. But the court is under so much pressure. It was before this, and it is so even more now. We were trying to still do hearings remotely, but I think that given the volume of cases that are now going to be put before the court, particularly what we call public law cases, which is where the local authority's seeking to intervene in a family and potentially remove a child, they're obviously going to take priority. And so, sadly, these types of cases probably won't be dealt with with the urgency that they were before and then when did when things do get back to normal, the court's going to have a huge backlog. So it is really frustrating because but you know as lawyers we want to try and fix and provide solutions and at the moment it just feels like our hands are tied.

Tamsin
Yeah, it's certainly a tricky situation. I'd wonder if you can just cover as well, how you would suggest dealing with the handover in a situation where the parents do perhaps live a little bit closer together and are able to still share the curb between them. How would you propose that they know about the handover?

Katie
I think that or it depends on what the circumstances are and whether there has been any issues between the parents, for example, domestic violence, that there might be restrictions in place as to how handover can occur. If there hasn't been, then trying to utilise the home but having strict boundaries in place. So you know, if you have the drive and the child's not in an infant, then one parent parks at the end, the other stood at the door and the child just runs back, so it avoids that interaction. And I think the other option is if that you don't want the parent to come to your home, and the guidance from the government is that people can still exercise and do that once per day. So it may be again if it's safe to do so that you utilise a park, or you know, the car park at the park or something like that somewhere that is visible and safe. And use that as a handover location. But it, you know, it's far from ideal, but people are going to have to be flexible and a bit creative as well. And again if it's safe to do so, they're gonna have to put whatever issues they've had before behind them. And try and find a way forwards, you know, in this very difficult situation.

Tamsin
Yeah. And that, I think, leads us on to talking about making sure that if it is possible to make sure that both parents are still involved with the children at this time, then you  do need to kind of follow the order. You've had some experience where that's not necessarily happening.

Katie
Yeah, exactly. I think at this time, you know, the children have been through so much recently. They're not going to school. They're not spending time with their grand parents, which you know it can he be hugely distressing to them. So the key then is to keep control and stability of what you can and one of those things is the arrangements for their care. So try to keep that stability. If necessary, you know, do change the arrangements if it has to, but only so that it assists the child moving forwards. So if handovers are a problem, then try and look at blocks of time rather than more frequent handover so that you're only doing one or two a week. But once you've agreed on something, stick to it and keep that stability for the child. And sadly thinking in times when you know when there's a crisis, it either brings out the best in people or the worst. We've seen that with people hoarding toilet roll and everything else from supermarket. But this shouldn't be used as an excuse. You know, I don't say that lightly, because I know that vast majority of parents won't do. But sadly there are cases where there is a concern that people are. And I understand that people are anxious and they're concerned. And but for the child, the most important thing is that you keep things as normal as you possibly can and, you know, keep that routine.

Tamsin
Yeah, of course. I assume that communication between the divorced parents or separated parents is going to be absolutely vital at this point in time.

Katie
Yeah, exactly. I think that everyone is anxious about the situation. And I think when you have, your child is going to spend time with the other parent and suddenly you're left at home on your own. You know, your mind's probably going to overdrive. So parents, both need to think about that. And no, no. If it's again, if it's safe to do so, with no restrictions then you know, a simple text or a little face time just to reassure the other parent that they are fine, you know, even it is an order in place or you've got a new agreement. You can still add to that. And I think if you could communicate and share information, talk about your concerns and then put things in place like more frequent face times just to keep that connection and between the children and the parents  and each other. Then those things, they're gonna help.

Tamsin
Yeah, absolutely. If you are living a long way away, and you know, whether it's this country or are in fact in another country, you know, use of video calls and so on. Just keeping contact, it's not quite the same but at least it's something.

Katie
Exactly! It's still seeing that your child's, you know, healthy and well, and they can talk about what they've been doing. And it's just keeping that that Connexion, because it would be awful that for children who are cared a lot by grandparent's, for them to simply disappeared, you know, it's really unsettling. So you need to not do that with their own parents, need to keep that consistency and reassurance.

Tamsin
Yeah, absolutely. So at this time, is there anything else that we should be talking about?

Katie
I think we've kind of covered the main areas? I think that as you say, it's just the communication and resisting the urge to and say: "Well, you know, I want to go to court" because there isn't that mechanism at the moment, so we need to look at communicating. An d if you can't agree things between yourselves, then look for a lawyer who can help. You know, we're doing quite a lot of round tables, but virtual ones. So you know, little ones on zoom or whatever platform it may be . We're having those negotiations and discussions like we would at court, so there are still options. But I think people have got to be quite sensible and understand that this is just completely unprecedented and just focus on supporting each other rather than on causing even more difficulties at this time.

Tamsin
Yeah, absolutely. And obviously the good news for people who are living relatively close their children is that they can still share care, which is gonna be really important for parents.

Katie
There was a big chunk of time this morning where everyone was understandably very concerned  following Michael goes initial advice. So, thankfully, we are not in that situation. We will have to keep everything under review.

Tamsin
Yeah, absolutely. That's brilliant. Thank you so much for joining me this afternoon and updating us on the current situation and we'll see you soon!

Tamsin
Thank you for listening to the Smart Divorce podcast. If you'd like details of our guest today or of myself so you can get in touch, please check out the programme notes. Many thanks, see you again soon!