Child Custody Rules During Covid-19 Are Still 'Open To Abuse', MP Warns

Campaigners call for 'dangerous' loophole that allows separated parents to withhold contact to be scrapped.

A policy launched in March allowing one parent to unilaterally withhold child contact from a co-parent on safety grounds is causing concern among domestic abuse campaigners and family support services who say it is “dangerous” and enabling abusers to control their victims further.

According to current guidance, if one parent is “sufficiently concerned” that complying with arrangements set out in a child arrangements order would be against current health advice, they “may exercise their parental responsibility and vary the arrangement to one that they consider to be safe”.

Any parent disagreeing with an ex-partner’s decision to withhold contact can apply to the Family Court – but only after the decision to stop contact has been enforced.

Dame Vera Baird, the Victims’ Commissioner for England and Wales, is now calling on the government to scrap the policy, launched at the start of lockdown, after a House of Commons briefing confirmed that it was still in place.

Speaking to HuffPost UK, Dame Baird said: “This exception is much less needed, perhaps not needed at all now, because the Family Court is up and running with phone and Skype hearings said to be commonplace.

“Therefore the need to give one parent unilateral licence to change child parenting arrangements no longer exists. It is time this policy was scrapped.”

Rosie Duffield MP, who moved the House of Commons to tears in 2019 with a speech where she opened up about her experiences with a violent ex-partner, said the guidelines were “clearly open and liable for abuse”.

“If, for example, a coercive former partner’s shared custody time coincided with a change of rules or tightening of lockdown, they could easily exploit this and refuse to hand the child back or take them home,” she told HuffPost UK.

Rosie Duffield speaking in the House of Commons about her abuser.
Rosie Duffield speaking in the House of Commons about her abuser.

Parents across the UK have been voicing their concerns on Facebook since discovering the rule was still in force.

Michele Simmons, a researcher who specialises in the adoption process wrote: “I’m living and seeing the consequences of what can happen when a child has been isolated from a parent’s care for extensive periods. They can be poorly for life, and as a mother that makes me very concerned.”

A father, also on Facebook, said: “I suspect there will be legal challenges to it and we may find that in certain circumstances it might be seen as fair, for example where there is a high R rate in an area, or where travel is restricted and the other parent cannot travel within a local lockdown area.”

Laura Baxter, who produced the first UK database looking at contact arrangements during lockdown, said the guidance is “open to misinterpretation and abuse, particularly by separated parents playing a tit-for-tat custody game”.

Charities in the UK offering support to families have noted a significant increase in parents claiming they have been unjustly denied contact during lockdown.

More than a third of respondents to a survey carried out by Women’s Aid who had child contact arrangements said contact had been used to further abuse, with children not returned as arranged or a mother’s access being restricted.

Lucy Hadley, campaign and policy manager at the charity, said it was trying to raise awareness of the dangers faced by adult and child victims of domestic abuse. “We are concerned about the safety of child contact arrangements for survivors of domestic abuse during the pandemic, and we are also concerned that the current guidance does not address these challenges,” she said.

Billy McGranaghan, founder of the DadsHouse charity, which offers support and advice for single fathers, said dads were also being blocked from seeing their children during the pandemic.

“We have seen a rise in fathers facing allegations, which are often false, over their conduct. As every accusation made has to be checked by social services or Cafcass [Children and Family Court Advisory and Support Service], these investigations take up a lot of time, which means dads are blocked from seeing their children for even longer periods. This policy is clearly dangerous, and will be used as a delay tactic by angry parents,” McGranaghan said.

Despite the introduction of remote court hearings for contact disputes on March 23, some lawyers say the help available to parents who find contact withheld is limited – and often out of reach.

Simon Bruce, senior counsel at law firm Farrer & Co, which specialises in family cases and also runs the law clinic at DadsHouse, said victims of abuse were being let down by the justice system.

“The government’s own coronavirus advice suggests that a parent who is not getting to see their children can make an application to the court to get redress or seek out the help of a mediator, but this ignores the reality that many clients don’t have the resources to invest in legal assistance and other forms of dispute resolution. Estranged parents are now left with nowhere to turn,” he said.

“People will now use this as a carte blanche to breach orders.”

Anne Neale, who leads Legal Action for Women, an organisation that offers vulnerable mothers legal assistance, agrees with Dame Baird that the policy is not fit for purpose. “Preventing children having contact with their mothers is devastating for them, as well as their mothers, and this guideline should be scrapped and replaced with one emphasising that Covid must not be an excuse to renege on court agreements by denying contact with children,” she said.

Rosie Duffield back calls to update the policy. “I would support clarification in the guidance to prevent potential exploitation of the pandemic with regard to family separation and child care,” she told HuffPost UK.

This follows a meeting on October 1 in which domestic abuse victims spoke to members of the House of Lords about their experiences in the family courts.

Victims told peers they were often ignored in court, and made to share child contact with abusive ex-partners. After the meeting, the Victims’ Commissioner for London, Claire Waxman, said the treatment of domestic violence victims in the family courts amounted to “state-sanctioned abuse.”

The government’s Domestic Abuse Bill, which includes creating a statutory definition of domestic abuse and training for professionals to spot controlling and coercive behaviour, awaits its second reading in the House of Lords.

Meanwhile, parents around the country have been left angry and confused. “I thought that contact was to continue unless one family is showing symptoms or has been around a person who has tested positive,” wrote one parent on social media. “People will now use this as a carte blanche to breach orders.”