England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
(Sitting at West London)

		Gloucester House 4 Dukes Green Avenue Feltham TW14 0LR
		Monday, 27 April 2020

JUDGE WILLANS:

1. I have heard submissions from both parties in this case and, as I have already observed, I have a bundle of documents which is more than sufficient for analysing the issues in the case. I have position notes but also I, of course, have heard the submissions today.
2. This matter has come on as a remote hearing by telephone. For the avoidance of doubt I cannot really see anything in the hearing so far as it has been conducted that suggests that that will have materially impacted upon the decision-making process. Plainly the underlying Covid-19 is a factor which goes into the mix, but in terms of the nature of the hearing the hearing has been conducted, save for us not being able to see each other, in a manner equivalent to that as in the court, with submissions being heard over the space of a little under an hour at this stage and the parties have had access to all the documents and indeed, to a limited extent, hearing submissions without being distracted to a degree has allowed perhaps a focus, the mind to focus on what one is hearing. So I can see nothing in this hearing today which has been in any way impacted upon in any material or prejudicial sense by being conducted by telephone rather than physically in person.
3. The issue in this case relates to two children -- and of course one should not lose sight of the fact that we are considering two children and at the heart of any analysis must be the children's welfare and their welfare is plainly the paramount factor which engages the various points put before me today. Both mother and father argue from the perspective, effectively, of the children's welfare, whether they refer to it explicitly or not and so each say in their own way that their proposal is the one that will best safeguard or meet the children's needs during this period of lockdown.
4. The issue in the case has to be understood in the context of a relationship which has had quite significant court intervention and I have already been taken to orders made by this court by DDJ Birchall (I think there are orders from Judge Edwards as well and Recorder Wood). The historic and original order in this case goes back to August 2017 and so approaching three years ago, but that is not a comprehensive account of the orders because elsewhere in the position note I am reminded that Recorder Jones, as he then was, made decisions, I think, on an emergency basis relating to the children's school attendance and indeed I remember having to deal on a very short order basis with an application to set aside that decision, which I think was a debate between schooling [school A] and one further north than that in the [London District] area.
5. In any event there had been other litigation between the parties. I am asked to consider Recorder Wood's judgment and observations and other observations made by Ms Race, the Cafcass officer involved in these children's lives historically, and of course this case is not in a vacuum and the issues between the parties do not exist in a vacuum.
6. However, applying my mind to the immediate past, what is said to be the issue in this case relates to the current Covid-19 public health emergency and the concerns, genuine or otherwise, as to the children transferring between separated parents. That is between parents who live in different households with perhaps different routines, responsibilities in the light of the lockdown and that is in the context, of course, of individuals not undertaking unnecessary responsibilities, unnecessary travel, unnecessary employment beyond essential work and so the lockdown that we are all more than familiar with.
7. It is perhaps just wise for me to record that prior to the lockdown -- and indeed continuing -- the court order for the children is as follows. First, these children live with their parents on an equal basis. There is a shared care order, but not only is it a shared care order, it is a real shared care with equal caring. The care during the term time is split equally, 50/50, and the arrangements found at p.20 of the bundle, going back to DDJ Birchall three years ago, as I say, provides for the children to spend seven nights a fortnight with their father and seven nights a fortnight with their mother. That is not a week on/week off arrangement. I expressed views as to why that might have been the case. Three years ago in this case the children would have been -- I remind myself they are now nine and six years of age -- broadly three and six years of age and so I can see why the court and the parties may have agreed a structure under which they are with their parents seven nights a fortnight but the blocks were two nights and five nights / two nights and five nights, undoubtedly to allow the children to not be away from each parent for more than five nights. I suspect that was the basis behind it; there may have been other logical reasons but the passage of time perhaps has lost those points now. But that was a true shared care arrangement and has been a true shared care arrangement and I think there are said to be difficulties with it, but nonetheless it continues and did continue as at the March period when the lockdown commenced.
8. The arrangements for out of term time are fundamentally conventional and the children spend half their holidays with their parents. The way in which that is divided is set out within the court orders, including of DDJ Birchall and the other court orders and ultimately the children spend their summer holidays, as I read it, by now in blocks with each parent of a week or two weeks, varying between them. Clearly the parties have determined that over the school holidays the children's ability to not be with their parents and the parents' ability not to see their children is modified. Over half terms, February, May and October, the children spend effectively the whole half term on a rotating basis with a parent and so undoubtedly something like a parent picking up at the start of February half term, keeps the children for the half term and then the next half term in May is taken by the other parent. Easter and Christmas are divided equally as well, I imagine, in this conventional way.
9. So those are the arrangements (as I say, a true shared care arrangement) but the parties have fallen into dispute since lockdown and the children, so far as I understand it, have not seen their father and the correspondence in the papers before me indicates that the parents have become entrenched around the issue of Covid-19 and its relevance to their arrangements. The mother's position in correspondence is that the plans of the father are contrary to the children's welfare and contrary to guidelines and guidance and therefore the children have not spent time with their father based around his planning. The father's position is that his arrangements and plans for this period have no impact whatsoever on the children, beyond that which is bound to arise in circumstances where the children are not at school in any event due to the closure of the schools.
10. Just to put some flesh on the bones of that dispute, the father's arrangements during this lockdown period are that he has effectively moved out of his home in [A]. The mother lives in [A] as well and in fact they live in very close proximity to each other, as suggested by their postcode on the application before me and, indeed, I think they are probably within a five or so minute walk of each other in the [A] area. So the father has moved out of that address during the lockdown period and moved to [B]. This is accommodation which is owned by, I think, his uncle or a family member -- it matters not -- and he has moved into that accommodation whilst his relatives are elsewhere. It therefore serves a range of functions, it seems to me, from the father's perspective. I think he assists his family in part by being there to ensure that it is house-sat, as such, but secondly it provides an environment which in a lockdown period has some benefits or deemed to have some benefits; I think a more spacious garden, more opportunity to take exercise or spend time outside during a lockdown period. I think that is a fair summary of what the father says about that environment. He has travelled to the environment with his partner, whom I am told he has been with now -- I think [X] -- her name does not matter fundamentally, but if I have misgiven the name I apologise -- for some two and a half years' relationship and they are effectively living there together.
11. The father is continuing to work. He is able to work remotely. He is in some form of compliance industry and he is working by telephone or computer or however. He does not need to attend the office. So he is working from there and he intends to carry on working from there, so far as I understand it, during the lockdown period. What that means for him, of course, may change but there are conceivably two lockdown periods for him. Firstly, there is the lockdown period when he is not required to attend work because of social distancing and that may be a prolonged period, for all I know. Secondly, there is the lockdown period in so far as it touches upon the children's schooling. Of course the children are out of school at this time; they are not children who are vulnerable and obtaining of -- continuing attendance at school. They are effectively at home being home schooled. So the second lockdown period in this case would be the date at which the children return to school. That is, it seems to me, in any event the short stop when the children return to school. The debate around this issue of [B] would then disappear because the children would not be able to be brought to school from [B]. So it seems to me one or other of those two features changing, employment or school, will readjust the arrangements back to the preceding circumstances in [A].
12. So that is the father's position and underlying the correspondence between the parties is a disagreement between the parents as to whether that is appropriate, consistent with guidelines, and best for the children. The mother's arguments put before me today, and which I am bound therefore to focus upon, are: one, as to the change in location, living in [B] rather than [A]. I am told that it came as a shock to the mother but quite aside from the shock factor, the key point is the mother says that this itself is a factor which is relevant. Its relevance is said to be, as I understand it, one: that it poses a potential health or welfare risk. I do not understand this to be in terms of the simple travel, I understand it to be in the context of a potential contagion of the virus or the transmission of the virus.
13. […short delay whilst party rejoined to hearing…]
14. A second point which has arisen -- perhaps more so today; I do not know -- but the second point that I have had my attention drawn to is the implications of home schooling and what is said in this regard on behalf of the mother is that the children are now being home schooled, as I think is self-evident, as I have observed, that those demands are demands that the father is poorly placed or not so well placed to meet because he continues to work -- which is of course accepted; I have referred to it -- and therefore she is better placed and indeed the only place, I imagine, she would say, to ensure that those welfare needs are met. That point I will come back to in a moment from the father's perspective.
15. A third point is in relation to an issue which is touched upon in the position note and elsewhere, which is that the mother has some medical issues herself. Reference is made to her suffering from [condition Z] and additionally the mother would say that to some extent she is immuno-suppressed and consequently she is in a vulnerable group and so the risks of virus transmission are to be particularly understood and reflected upon in that context.
16. So those three points have been particularly brought to my attention through submissions. I have not heard about or it has not been raised with me, and it seems to me sensibly, about the issue of the children having a greater time or spending greater time with the father's partner. That was raised as a potential issue, I think, by the father but it has not been developed, so I do not take much time with that.
17. The father's position on these points is that the issue about [B] and travel is on assessment an issue without any depth or meaning, without any substance. The point he makes is, whilst accepting that of course the journey time to handover or for transmission is markedly different to being a car journey of close to 80 miles and perhaps a car journey or a walk of five or ten minutes -- that is accepted -- but that that journey itself does not increase or have any material impact upon risks of contagion. The children would not, he says, leave the car during the journey and so if they get into a car in [B] and leave that car in [A], there is fundamentally no difference between getting into that car in [A] and getting out of it in [A] and so he would say that that is not a relevant consideration, given the focus in this hearing on Covid-19 and the risks attendant upon the same.
18. In relation to the question of living in [B] and the issues surrounding that, his position on that is explained in my opening account of why he has moved there and his suggestion that that itself, again, does not elevate risk simply by living in a different place, it is the way in which he manages his life whilst living in that place that is relevant: is his social distancing and the way in which he is social distancing. He would say he is and therefore there is no material difference to be drawn between [A] and [B].
19. The third point is in relation to the home schooling and the father's response to that is that this is a case in which the court has determined that the parents should share care and that is itself a clear identification of the court's conclusion that the parents share equivalent capacity to meet the needs of the children and that he would say, like many other parents or the vast majority of parents who are in this situation, he is able to and placed to ensure the children's continued schooling is maintained.
20. The fourth point is in relation to the mother's health. There is a debate between the parties in this regard from reading the position note as to whether the mother's [medical condition] has a particular material impact upon her being in a vulnerable group. Father says she has not received the letter from the government, Public Health England, in relation to self-isolation for 12 weeks. I think he would say that is self-evident because she has, I think he would say, moved home during that period and, indeed, is not self-isolating in that way. But there are bound to be degrees of vulnerability and to some extent one would imagine the mother is better placed to explain or gauge the totality of the impact of ill-health upon her.
21. The positions of the parties I think is important to recount as well. Obviously it is important, but in this case particularly so. The father's position is that the arrangements should resume. That is the simple way of putting it. It is a little bit more complicated because the father's proposition is that it should resume on a slightly different basis, reflecting the fact that the children are not at school. So what the father is saying is that during this period of lockdown and no school attendance, the order should be varied as if to reflect a period of time off school and so that would be a one week on / one week off rota, as would be in the summer holidays or elsewhere. So father's position, as I understand it, is that would continue until such time as the children return to school, whereupon on return to school the rota set out by the parties in DDJ Birchall's order would resume. So the father says there should be a one week on / one week off rota.
22. In support of that, though, what the father asks for today -- and this is his formal application -- is that the court should make an order under s.34 of the Family Law Act 1986, which permits a police officer to take steps if necessary to recover the child into his care, or children into his care and that is the formal order before me. It is said that that in part explains why this was not a case requiring permission because there is a s.91(14) order made by Recorder Wood in October 2018. In fact, of course, that expired by the time of this application, as I understand it, but if it had not expired it seems to me that permission would likely have been given because of the fact that this is an enforcement application, if not a 1986 application.
23. The mother's position equally deserves explanation. Her position is -- and here I look at the bundle at p.20 or 23, or indeed the position note which charts the school arrangements, term time arrangements and records faithfully what I summarised earlier -- that the arrangements should be varied so that the father does not have the children overnight on a Wednesday, as he currently does every week and, indeed, that he has them overnight on a Thursday, as he does on every week, but that he should obtain them as if they were at school physically. So he would recover them, no doubt, or obtain them, pick them up from her or such appropriate venue at about the end of the school day, on a Thursday, 3.30 or so, 4.00, and then return them to her as he would return them to school at around 9.00 on the Friday.
24. So effectively, although the children are at home all Thursday and all Friday, the father would effectively be approaching the position as if the mother was schooling the children and he was providing them for her schooling purposes. The arrangements for the weekend would not change in that they would alternate and they would be with the father, collecting again from her, as if schooling them, on a Friday afternoon at about 3.00 to 4.00, and returning them to her, as he would for school on a Monday at around 9.00 and so the implications of this are threefold. Firstly, that the father does not have Wednesday overnights; secondly, that the home schooling is undertaken purely by the mother (see her argument) and, thirdly, as a likely consequence that the children, I am told, should live in [A] and so the father should be in [A] during this period to enable this to happen. Indeed, I think I understand that to be a condition of the proposal.
25. So those are the positions between the parties and I need to draw some conclusions. The conclusions I draw are that this is an application under the 1986 Act based on the children's welfare and it is the s.1(3) checklist that I have particular regard to. As a starting position the children undoubtedly will have settled into arrangements now between their parents which have been ordered and in place for a number of years. These are children who will have now grown to expect and understand that they spend their time equally with both parents. When the order was made, as I said just a few moments ago, in 2017 the children would have been approximately three and six or seven years of age, effectively. So for [child A] this is in terms of his school life the only order he has known; for [child B] not particularly significantly different. So the children's experience and emotional needs for stability and security and predictability are tied up with these arrangements.
26. In terms of safeguarding, of course, safety, which is one of the criteria, the safety here is not safety from their parents but it is safety from contagion and, indeed, ensuring that the children do not transmit as much as obtain the Covid-19 virus.
27. The change of circumstances engaged for the reasons I have given. The mother does propose a change. It is not such a substantial change as the children have experienced since the commencement of the lockdown but it is a change nonetheless. The father proposes a change. He says the children should spend time with him in [B] and on a continuing basis in an equivalent to the holiday-type arrangement. That would be a change for them.
28. The capacity of the parents is engaged by the mother's arguments and I need to deal with that, but in broad terms these parents have been already determined from a process of agreement and determination by the court to be equally capable of meeting the needs of the children.
29. The children's wishes and feelings are not before me and given their ages and given the dynamic between the parties, it perhaps would be unlikely that their wishes and feelings would be a determinative or strong feature on the facts of the case.
30. Their personal circumstances are well-known to me from the papers I have and they are perhaps most importantly identified as a boy and a girl, of course, relatively young children, dependent on their parents and have lived their memory life within the care of their parents on a substantial basis.
31. So I apply my mind to the issues in the case. In doing so, my attention was drawn to the guidance given by the President of the Family Division, and that indeed is incorporated in the bundle but I am well familiar with it. The President's guidance to the public in relation to child arrangements orders was given to explain to parties that they share parental responsibility and that they are obliged to exercise that parental responsibility. It is not for the court to exercise parental responsibility in relation to their children.
32. The President identified in the time of Covid-19 and lockdown that would be an issue that would cause the parents to engage their parental responsibility and consider how they could apply the social distance in lockdown provisions between them and how they could make it work for the children. The President made it quite clear that, as is correct, the transfer of children between parents' homes who are separated is an exemption to the rule as to unnecessary travel and so the President observed that such travel is permissible. However, the President pointed out that at this time, dependent on the circumstances of a case, parents may have concerns or issues around the children complying with an existing court order and those concerns are not exhaustive but might include where, for instance, the children having particular health needs, where someone in the household in which they live has particular health needs, where someone in the household to which they will transfer has particular health needs and all sorts of other factors that one can imagine or identify.
33. In those circumstances the President endorsed the notion that parents in the first instance would seek to find a consensual way forward and that would be best to record between them and would be a sensible way to act. But he did observe, as would not be surprising, that in the context of children litigation where the court has previously been involved, there may be disagreement as to the exercise of parental responsibility and he ultimately concluded that parents will have to make the right decisions and apply the spirit of the order and do what is best for their children and be willing to have their decision-making held up to the spotlight of examination as to its reasonableness once the Covid-19 period has ended. That has application to this case, of course, but that is no more than guidance and it does not remove the court's jurisdiction and no one before me today has suggested the court does not have jurisdiction to engage with this issue. The President's guidance was not to say that the court during this period suspends its jurisdiction and leaves it to the decision-making of parents or a parent.
34. It is also right on the facts of this case to observe the balance between the parents is important. We are not here talking about a case in which the children see their parent, their father in this case, once a week for three or four hours or even once a fortnight for an overnight visit. This is a case in which, to use simple terms, neither parent has the upper hand. They both share care and so for one parent to make a unilateral decision has to be seen in the context of that being circumstances in which the other parent has not only equivalent parental rights, but indeed also has equivalent responsibility.
35. So I apply my mind in the issues in the case and as I have heard the issues in the case, the decision-making for me seems to become easier to understand and easier to resolve. I think it is very important on the facts of this case to analyse this from the perspective of the mother's actual proposal before the court and so it is not a case in which I am being told that Covid-19 prevents contact or living time with each parent. The mother's proposals are that the father has in a 14-night period five overnights. The children enter his household and spend time overnight on five nights in 14, that they spend time in his house overnight every week of the period pending lockdown and presumably, if that period extends into the school holidays or into a school holiday, May, for instance, that the contact arrangements or time arrangements continue.
36. The realities of the proposal is that the children will transfer between homes as much as they would have done under the existing arrangements. They will transfer, indeed, additionally because whereas before they would have transferred in week one on a Wednesday and then on the Monday following and in week two on a Wednesday through to the Friday, so that would be out of the house and back into it on two occasions over the course of a fortnight, they would now come out of mother's house on a Thursday, come back into her house on a Thursday, then leave her house on a Friday and then come back into her house on a Monday and then the following week again for the Thursday afternoon again, so an increasing amount of transmissions between households. It is not conceivable to say that the risks of contagion or transmission are reduced by that arrangement compared to the original arrangement. Indeed, if anything the amount of shifts between household increasing is bound to increase prospects of transmission rather than reduce them if they are materially changed at all.
37. So in that context this is not a case in which I am being asked to conclude fundamentally that there is some feature of the receiving home or the dispatching home that means that the children cannot transfer between households. This is not a case in which there is an acute vulnerability in the household for the children or some other family or other member that means that there would be endangerment to health of them transferring. That, I think, is a fundamental conclusion from the positions put before me because it means that the arguments around contact being suspended or time being suspended for health grounds falls away. The question is: how should time be spent, be regulated in the light of Covid-19, not should it happen at all.
38. The second feature is in relation to the [B] point. The [B] point was raised as a potential argument around the exercise of parental responsibility. It has not been argued before me in that way and it would, it seems to me, be not maintainable as an argument of parental responsibility. The question, I think, of [B] is: does it present a health and safety issue? If it were, for instance, that the father had chosen to go and live with the rest of his family in a large house all together, in a communal sense, then that might raise issues, of course, and, again, there may be a whole host of different permutations that could increase risk. If the father was going to move into a very close-lived environment in a different community, that might be different. Here the father's proposal is to be moved from urban London, in [A], to rural [B]. Now, of course, each come with risks and the risks of areas in the UK of Covid-19 transmission have developed over the course of the epidemic, from London being a hot spot to it now moving around the country in an equivalent factor. So I draw no particular distinction but what I cannot see is that being in [B] enhances or increases risk to the children from Covid-19. What it does, though, is create a different living environment for the children and the question is: can they cope with that adequately or not? I see no reason why in principle they should not be able to cope with that. It is an environment in which they are with their father; it is fundamentally, it seems to me -- and there is no reason to believe otherwise -- a safe, secure environment. It may be in many regards an environment which they enjoy with a rural side to it and, given the lockdown situation, the inability to enjoy London with all it has to offer, a rural environment may have some additional benefits for them in contrast to living with their mother, which they will continue to do, plainly, on both parties' propositions; it will give them some potential break out time for being in London in a close environment. That is not to criticise the mother's living environment, it is just to say that there are distinctions that can be drawn.
39. The issue in terms of travel, though, and that it will be increased has an impact on the children, of course. Travel for the purposes of facilitation of handover is a factor the court always has an eye on but in the context of this case it is not, it seems to me, a material factor. It is well within the context and capability of the children to manage. It is not intended to be something that is going to endure indefinitely. It will undoubtedly conclude at the latest by mid-July, when the school holidays will happen in any event and the arrangements for the summer will be in any event likely materially different, with each parent being able to manage their time at home or away.
40. So there is that point. In relation to home schooling, I think I have to draw the following conclusion. On the evidence before me there is nothing to suggest that both parents are not equally able to and capable of allowing and supporting their children to be home schooled during this period, as with a multitude of other parents who have to manage their day-to-day life around such arrangements. So I think it would be both unfair and not justified on the evidence to conclude that either parent has a benefit or an attraction over the other or a capacity over the other in this regard.
41. I then turn to mother's ill-health, but the mother's ill-health, it seems to me, has to be put to one side when I consider the proposals in the case. The proposals in the case are for the children to transfer from home to home on a regular basis and therefore it seems to me that that cannot be a material consideration on either party's case.
42. That leaves me with the conclusion, therefore, that the arguments put forward to support the change are not justified and they are not justified through the prism of the children's welfare. The issue, therefore, I am left with is whether I should in any way be varying the arrangements from what they are to effectively what father asks for. I can see no justification, though, from modifying them to reduce time with the father or to determine that he should not be able to home school them. In simple terms, I have heard no arguments as to, if he were living in [A], why the arrangements should not simply continue and, indeed, the arguments from the mother in such circumstances seem to have fallen away.
43. The question therefore for me is: should I vary in the way suggested by the father so that there is one week on / one week off? Presumably the date for handover in such circumstances could be agreed, but absent agreement it would likely be something like the Wednesday when there is always a handover on the current arrangements, but just one handover a week, effectively, being picked up on a Monday, Tuesday, Wednesday or whatever day and returned on a Monday, Tuesday, Wednesday once a fortnight. The benefit -- and there is an attraction of that -- is that that in fact reduces the amount of transmission of the children between households, therefore reducing risk to all. A second feature to note is that the children by now have become familiar with the holidays being arranged in that time and therefore are resilient to such an arrangement; they are familiar with it. Thirdly, the children to some extent will be more than familiar with the context that Covid-19 is changing their life plans at this time and so this will simply be a part of such planning. So it seems to me that the concerns that would arise for the children at school, of course, are not relevant.
44. I have drawn the conclusion, having considered all the factors, that in fact that is the sensible solution during this period of Covid-19 lockdown but that it should only continue until such time as the children are entitled to return to school at their local school, at which time the arrangements set out in the order of DDJ Birchall, as modified under the slip rule, will then immediately be reinstated.
45. So pending that and subject to the arrangement that already exists in relation to school holidays and May half term in particular I have in mind, the arrangements will change to a one week on / one week off basis. That will come into effect -- well, I am going to say the following and this is agreement -- that will come into effect on Friday of this week and will be from Friday to Friday each week, replicating a school week as such. That will give some sense for the children, I imagine. They will remain with the mother until Friday and the order will then be with the father from Friday to the following Friday. Handover time, unless there is agreement, will be at the time suggested in the previous order, which undoubtedly is around the end of school. The responsibility for facilitating their collection and return will be with the father, for reasons which I am sure are well-known to the parties in terms of him having effectively moved temporarily to [B]. So that is the conclusion I draw in this regard.
46. In relation to the s.34 order I think Mr Hayes raised the question about the mother being disappointed by the application in the context of there being a mediation process. I for a moment asked myself whether this was a heavy-handed response to the situation in seeking a police involvement order as such, but actually on reflection I ask myself: what are the alternatives, in fact? The father can pursue an enforcement process under a C79 application but that process is unwieldy and would effectively lead to a substantial delay pending the resolution of the dispute, whether there was a justified reason for withholding the children.
47. The second alternative for the father would have been perhaps to ask the court to impose a penal notice, but I bear in mind that the court order as it currently stands has a sanction upon it. In any event the father's application is for a default clause and I hope very much and expect very much that the order of the court, which is reasoned and based upon the submissions the court has heard, will now be complied with by the parties to prevent the need for police to be called to exercise their powers in support of a court order. That would be, it seems to me, a most unwise situation for the parties to find themselves in. It would likely be harmful to the children and would speak fairly strongly as to the parties' ability to focus on the welfare needs of the children.
48. I am making a s.34 order by default. I am requiring both parties to comply with a revised living arrangement based around Friday to Friday. The parents can vary that day if they wish to. If they agree they can vary that day but otherwise it would be Friday to Friday and in default of the mother complying, s.34 power will come into force.
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