10:37, April 07 175 0 theguardian.com

2020-04-07 10:37:04
UK lawyers inundated by divorced parents arguing over lockdown custody

Lawyers have been “inundated” with inquiries from divorced parents arguing about where their children should stay during the lockdown, with some trying to get their former partners sent to jail for breaking existing custody arrangements.

Some parents have been using the coronavirus outbreak as an excuse to stop their ex from seeing their children, withholding access on spurious grounds including “my ex won’t be able to teach my child their times table”.

One woman asked her lawyer to apply to a judge to send her ex to prison after he failed to pick up their child for a regular visit – despite him having proof he wouldn’t have been able to get there “for any amount of money”. Another wanted her husband to go to jail after he took the children to a different address from that stipulated on their court order in order to shield vulnerable relatives at the usual home.

Many parents report their exes refusing to return children from visits, making their children so scared of catching the virus that they don’t want to see the other parent, and saying the child could not leave because the household was self-isolating with symptoms – only to post pictures on social media suggesting otherwise.

Others are saying that because their ex is one of the UK’s 7 million key workers they are at high risk of contracting coronavirus and therefore they don’t want their children with them.

When the UK lockdown came into force on Monday 23 March, the government appeared to have forgotten about children who split their time between separated parents.

A footnote was inserted into the guidance the following morning, clarifying that “where parents do not live in the same household, children under 18 can be moved between their parents’ home.”

Sir Andrew McFarlane, president of the family division at the high court, issued guidance, saying he expected parents to “care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time”.

Parents could be permitted to change the “letter” of any court order detailing their custody arrangements but not the spirit of them, he warned.

Carolina MarÍn Pedreño, a family law partner at Dawson Cornwell, said she was busier than ever with inquiries from existing clients asking for advice on breaking existing orders as well as new clients wanting to take their exes to court.

“This week and last week we have been really inundated,” she said. “Some people are very opportunistic, trying to use the circumstances to cancel contact. Others are really, really concerned and they want to know whether their caution is reasonable and whether they will be criticised or penalised for changing their arrangements.”

Not all parents are being reasonable, suggested Cara Nuttall, a family lawyer at JMW. “We’ve had ones where they’ve said ‘I don’t think you can not work enough, so I don’t think the child will get enough attention’. I’ve had ones where they say ‘he or she isn’t used to spending as much time with you, so no’. I’ve seen at least a couple where they are arguing over doing the educational side of things properly … A ‘she has got to stay with me because only I can teach the two-times table’ sort of thing,” she said.

Disputes have also arisen since the government told non-cohabiting couples that if they wanted to see each other during lockdown they should move in together. “I’ve had a good number of inquiries saying ‘mum’s moved her new boyfriend in. I don’t know anything about him, I don’t know if he’s coming or going to work’. We’ve had some where the other parent’s new partner has got their own children coming and going from a different household,” said Nuttall.

One of Nuttall’s clients had failed to pick up his child: “There was one case, poor man, he was completely stranded and he could prove he was stranded, and he couldn’t have got there for any amount of money and [his ex partner] wanted to issue an application for committal [to prison] or a fine because he had breached the order by not collecting the child for his weekend contact.”

Another mother had applied for her ex husband to go to jail for breaching the terms of their child arrangement order after he took the children to a different address – to shield vulnerable family members isolating at the usual house. “She is applying for his committal to prison because he shouldn’t have had them at a different address, just out of spite,” said Nuttall.

Chris Longbottom, a partner at Clarke Willmott, said that while most clients are able to agree alternative arrangements, sometimes using a mediator, around 20% were “using the crisis as a tool to stop contact, to hurt the other party, to do what they think is best, forgetting the long term mental health of their child.”

He said many calls to his firm were parents simply checking their interpretation of the guidance but others were already on the warpath. “We’ve had parents saying, so-and-so says they are in lockdown, but I’ve seen posts on social media that they are absolutely fine, there’s nothing wrong with them, they are making it all up: can we go to court?”

Parents need to understand that the crisis does not give them “carte blanche” to do whatever they want, said Nuttall.

Case study: Simon

Simon, a police officer in London, spent almost £30,000 taking his ex wife to court to get access to his 10-year-old son, James, following an acrimonious divorce. He normally sees the boy one week night and on the weekend, but his ex emailed him the night Boris Johnson announced the lockdown, saying she would not allow James to visit for the foreseeable, on the grounds that as a key worker, Simon was at high risk of getting the virus. James offered to have contact via Facetime or to simply come and wave at James through a window, but his ex refused and told him to go to court if he wishes to challenge her decision. “It is heartbreaking,” said Simon, believing his ex is using the coronavirus as an excuse to distance him from his son. He last saw James for just one hour, a few days before the lockdown, and said the boy was scared to go near him. “He would not hug or kiss or hold me, sat in the back of the car for the first time when I picked him up and it was very apparent he had been briefed in relation to seeing me, although he should be in my care twice a week,” said Simon.

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