Advice for families

The Competition and Markets Authority’s (CMA) have now provided an updated example of their assistance in ensuring fairer refunds for couples who have had to postpone their weddings due to the pandemic.

If your wedding has been postponed, and you are unable to come to an agreement about a future date for your weddings, the contract may be frustrated. Frustration of a contract takes place when contracts have become impossible to perform, meaning you may be entitled to a refund of monies already paid.

Click here for more information

If you have been unable to obtain a refund from your wedding venue, our Commercial Litigation team maybe able to help. Give us a call on 0800 088 6004.

The Department for Environment, Food and Rural Affairs (Defra) have updated their guidance on access to public rights of way during the COVID-19 pandemic.

Initial guidance included suggestions for measures to help reduce disease spread, such as tying gates open so walkers do not need to touch them.

The initial suggestions have not changed but a new suggestion has been added. It is suggested that land managers and landowners may offer an alternative route around gardens and farmyards where it is safe to do so. If that alternative route is not owned the relevant permission from the affected owners should be sought. The alternative route must be safe for users and livestock and the original right of way must be maintained.

The original public right of way cannot be blocked or obstructed so the public may still choose to use that route.

Where landowners are concerned about the volume of public foot traffic through their farmyards or other land during the COVID-19 pandemic, suggesting an alternative route may be a helpful measure..

Read Defra’s advice on accessing green spaces safely

It is an unfortunate fact that some parents are using the current lockdown situation as a way to manipulate child contact arrangements. This is a time where parents should be working together to decide the safest arrangements for their child; not dictating, withholding, or even worse, manipulating their child to cause upset or “punish” the other parent.

There are other parents that are working well together and effectively communicating, in terms of listening and understanding the concerns of each other. This is how parents should be behaving in these unprecedented times (provided that there are no safety concerns), otherwise their behavior will undoubtedly cause additional stress to the child concerned, when they may already be worried about what is going on in the world.  In simple terms, the only ‘loser’ will be the child.Many parents have questions about what they can or cannot do during this time. It is hoped that the FAQs below will assist in answering some of those.

FAQs

Can my child move between mine and the other parent’s house?

Staying Alert and Safe (Social Distancing) guidance, published by the Government states that:

Where parents or someone with parental responsibility do not live in the same household, children under 18 can be moved between their parents’ homes to continue existing arrangements for access and contact.

It does not mean that you have to move your child between your homes. The President of the Family Division of the High Court noted that the decision is one for parents to take after assessing their circumstances. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

Some parents have decided to work together in the truest sense and have agreed to temporarily change the arrangements to make it as safe as possible, and ensuring the child’s relationship with both parents flourishes, by agreeing that the child should spend longer periods with other parent, so as to give them time to recognise potential symptoms, so measures can be taken to prevent infecting the other household. This is particularly relevant if there are individuals in either household who are vulnerable. It may also be the only time the non-resident parent is not working, so as to assist with child care in a way they have never been able to before.

What can I do if my child’s other parent is behaving unreasonably?

The first step is to attempt to communicate (by email or letter, if talking isn’t possible) in an amicable fashion, either directly or with the help of a family member or friend. Let the other parent know your concerns and ask them to understand. If that doesn’t work, you could suggest mediation. This involves a third party assisting with discussions between you both. This could be remotely through a trained family mediator, or with the assistance of a third party who you both trust.

If mediation doesn’t work, or the other parent is unwilling to engage, an application to the Court for a Child Arrangements Order could be made. Family Courts are still listing many matters remotely via video conferencing or telephone hearings, so applications can still be made as a last resort.  A family solicitor could help you with all of the above options.

I have a Court Order, but the other parent is not complying with it. What can I do?

The President of the Family Division of the High Court has issued national guidance where there are already Child Arrangement Orders in place.

This guidance states that parents, acting in agreement, are free to decide that the arrangements set out in a Child Arrangements Order should be temporarily varied.

Where parents cannot agree, the guidance states:

Where parents do not agree to vary the arrangements set out in a [child arrangements order], but one parent is sufficiently concerned that complying with the [child arrangements order] arrangements would be against current [Public Health England] advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The guidance states the key message is where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.

So really, the message to parents hasn’t changed too much, whether there is a global pandemic or not, in that they should communicate (provided that there are no safety concerns), let the children be children, the parents be parents and make joint parental decisions.  A child greatly benefits from having a healthy and positive relationship with both parents and particularly when those parents are working together.

The Department for Environment, Food and Rural Affairs (Defra) and Natural England (NE) have both issued guidance on access to public rights of way and green spaces.

Rights of way in England are not closed during the COVID-19 pandemic. NE note that the risk of COVID-19 being spread to others from people using public rights of way and other paths and trails is very low if people follow government instructions to maintain social distancing. While it is recommended that walkers avoid, where possible, footpaths that may go through farmsteads or other rural businesses, it is also made clear that landowners do not have the legal right to block or obstruct public rights of way.

Measures suggested to help reduce the spread of the disease include:

• Tying gates open so walkers do not need to touch them.
• Using signage to notify where footpaths are narrow and social distancing may be hard to maintain; where routes pass through farmyards, to politely encourage users to respect local residents and workers by following social distancing guidelines and consider using alternative routes; and at access points, to remind the public of the need to take hygiene precautions and wash hands regularly.

Read more about how Natural England is working to bring about Nature’s recovery

On Monday, 23 March 2020, Boris Johnson announced a new set of restrictions in the ongoing effort to limit the spread of coronavirus.

Mr Johnson stated that people should only be leaving their home for one of four reasons:

1. Shopping for necessities
2. Once a day for exercise
3. Medical need or providing care
4. Travelling to or from work (if you can’t work from home)

As a family law practitioner, I found that many separated parents were asking me what this meant for contact arrangements with their children. The government have now clarified the position and stated that:

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

No situation is the same and if a parent has genuine concerns, then parents can agree to vary the usual arrangements. For example, if one parent needs to use public transport to facilitate a handover where one parent has their own vehicle, it may be sensible for the parent with the vehicle to carry out the collection and drop off.

Sir Andrew Macfarlane, President of the Family Division, has issued guidance on the subject. He confirmed that a dim view would be taken of any parent using the situation to unreasonably withhold contact.

If handovers are considered unsafe, for example, if one household is self-isolating, family courts will expect parents to temporarily facilitate contact by video chat or phone.