Saracens Blog

Child Custody Between Divorced Parents During UK Lockdown – How To See Your Child

For many of us, this is the unthinkable: Our deepest fear – A nightmare scenario where we cannot see or talk to our own children.

As parents, we believe in an almost inherent right to see and speak to our children whenever we want to. But in reality, there are thousands of parents out there, separated, divorced and estranged from their families, unable to see their children at all. The current pandemic has only highlighted and exacerbated what was an already existing problem.

I receive hundreds of queries from parents who want to know what they can do and what their rights are, especially during this lockdown period. I have written this piece to give some clarity, guidance and hope on some of the issues that parents are facing.

I’m divorced – Can I still see my child during lockdown?

The Government has confirmed that children (under the age of 18) can see, visit and live in both parents’ homes during this pandemic. Of course, safety is paramount and so a deciding factor in where the children visit and live will be if there are symptoms of the Covid-19 virus in either household.

The pandemic has naturally made us more cautious and maybe a bit more paranoid about the health and safety of our children. The government and the courts have urged parents to take a common-sensical approach to allowing contact wherever safe and possible. We need to be pragmatic and conciliatory right now and focus on the children, not ourselves.

Some parents are using the virus as an excuse to prevent contact taking place. They have stopped one parent from seeing their child for any number of reasons, some legitimate, some not. This is the wrong time to dig your heels in. The wellness of a child is dependent on the love, guidance and structure it receives from its parents. The more there is, the better for the child, especially now, in the midst of so much confusion. The lockdown has taken its toll on all of us, parents and children.  

I have always fought for the principle that children should never be used as a weapon in any relationship, no matter what problems the parents have with one another. In my experience, it is the children that suffer most when this happens and studies show that this can cause massive psychological damage to them in the long term. We must take a deep breath, put our kids first and start talking to one another for the sake of the children.

What happens if I already have a Court Order?

If you have a Court Order that deals with residence and contact between parent and child, this remains legally binding. Both parents must comply with the terms of the order. You can mutually agree to vary the terms of the order if you need to but if you cannot agree this between you, then make an application to court to vary the order.

The courts will consider all reasonable requests right now. We are living in such a fluid environment, with things around us changing daily.  If the parent with whom the child lives is not allowing or facilitating contact, then ask the court to force the other parent to comply with the terms of the order.

What if the seeing parent refuses to return my child after contact?

If you have a Court Order and one parent refuses to return the child at the end of the contact session, you can apply immediately to the court for enforcement. Family courts are ruling on many of these cases right now. They are a priority for them. Judges are acutely aware that these cases can spiral out of control very quickly.

If your child is not being returned to you and you do not have a Court Order in place, don’t panic. Apply for a residence order and at the same time, an order for your child to be returned to you. Even before you resort to emergency court proceedings, you can contact the police and see if they can help you. Often they can, in a situation like this.

I come across silly reasons given by parents for not returning their children after contact all the time – Eg: An ex-partner’s poor hygiene or cooking skills, having no credit on Oyster cards, not liking the ex’s new partner etc etc….

Don’t be THAT parent.

What if one parent is vulnerable or at high risk of exposure to Covid-19?

We all have to make difficult choices right now, all in the interests of safety. Ask yourself if it is worth placing your child at risk of exposure, just because you have the right to have contact. Talk to your ex-partner and work out a way for contact to take place in a safer form, maybe through video calling, or socially distanced visits for a while. These are all temporary measures and will not last forever. Think about what is in the best interest of your child.

How can I get a Court Order if I don’t already have one?

Personally, I would recommend that you speak to a solicitor who is a member of ‘Family Resolution’. Resolution is a group of lawyers that promote fast, realistic, non-confrontational ways of resolving your problems.

It can be highly emotional speaking about your own child as a child is very precious to any parent. Before you go to court, your solicitor can speak to the other parent and make contact proposals by phone, email or letter. They can resolve problems quickly but if that fails, they can also speak for you at court. It’s hard to hear but sometimes, your ex-partner might listen to someone, anyone, that isn’t you.

Mediation – Should I do this?

The short answer is yes, yes and yes. Mediation has helped hundreds of my clients. Not all cases are suitable for mediation but where possible, engage their services as they can save you a huge amount of costs and time. Mediators are independent. They listen to both parents and try to get them to reach an agreement for the sake of the children, without the pressure of legal proceedings/ threats.  

However, be mindful that mediation agreements are not legally binding, leaving room for one parent to change their mind. You can make them legally binding and I recommend that you do so. How do you do this? Your lawyer will be needed for this stage.

Use the mediation agreement to draft a consent order for the court – Both you and the other parent will need to sign this.

Complete a C100 application form stating that you want the agreement formalised in a court order.

Issue an application at court.

The court will usually ask a Cafcass officer (who is like a welfare officer) to undertake safeguarding checks on both parents.

The court will ask you and the other parent to attend a hearing, even if you reach an agreement. At the hearing, both parents can formally request a court order is made.

What can you do if you cannot reach an agreement?

There are a number of separated parents that simply cannot agree on anything. Many are still bitter about their breakup and use child custody hearings to play out battles from the past. Do not fall into this trap. The only ones to suffer will be you and the children. Its just not worth it.

If your partner is being difficult, apply to the court and ask it to decide.

The courts will look primarily at what is in the best interest of the child before it decides the type of contact each parent should have, how much contact and how often it should take place. In most cases, the court will grant contact unless there are serious compelling reasons not to do so.

Also, be aware that the process can sometimes drag on if one parent makes serious allegations about the other that need to be investigated. Don’t make allegations that are not true. You will just waste the court’s time and resources and if you are found to have lied, it will not help your case.   

Be sensible, be pragmatic and focus on what is best for your child. We have learned through recent events that we can compromise on many things that we previously didn’t think that we could.

Do it for the kids.

If you are being affected by any of the issues raised in this article or being prevented from seeing your child, then please get in touch directly with me via email at fnaz@saracenssolicitors.co.uk or call Saracens Solicitors on 02035883500.



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