Following the Government’s announcement that New Zealand is moving to a nationwide lockdown for at least four weeks, naturally there has been some uncertainty for families as to what this means for shared care arrangements.
While there has been some suggestion that self-isolation precludes children moving between homes, the Director-General of Health, Ashley Bloomfield said on 23 March 2020 that children in shared custody arrangements can go between parents' households as long as they live within the same community.
This means, for example, if a child spends time with a parent in Auckland and a parent in Christchurch, travel restrictions will see that the child spends the lockdown period with only one of the parents. This is to minimise the risk of COVID-19 spread. However, if both parents live in the same community, then care arrangements should be able to continue as normal, as both households should be taking the same safety measures related to self-isolation. At this stage, there is no legal definition of “same community.” Our current view is that same community extends to the same town or city.
The same situation does not necessarily apply to supervised contact. Our current understanding is that Court approved supervisors are not an essential service and therefore supervised contact, by a Court approved supervisor will not be able to occur in these exceptional
circumstances. However, there is currently no guidance on whether supervised contact, by a person outside the two homes, e.g. a grandparent, could occur. Our current view is that this would be in breach of the provisions of Alert Level 4 and therefore cannot occur.
Despite the above guidance, we consider matters should be assessed on a case by case basis and taking into consideration the relevant risks. For example, if the child or person in the home they are going to or in the home they have been in, has been overseas in the last 14 days, is being tested for COVID-19, has been in close contact with someone who is currently being tested for COVID-19, or has COVID-19 themselves, the child should not be moving between two homes (or at least for a period).
This extraordinary situation should not be seen as an opportunity for parents to unilaterally change care arrangements. The status quo of care arrangements should continue unless it breaches the provisions of Alert Level 4 and the Director-General of Health’s guidelines.
During this difficult time, parents will need to put their own interests to one side and focus on the overriding consideration, being, what is in the child’s best interests? It is also important that parents remember to fulfil their guardianship obligations of consulting and informing the other guardians about the child’s health and wellbeing.
If you have any uncertainty regarding the above guidance, you cannot reach agreement with the other caregiver or you have safety concerns (for yourself and / or your child), the first step is to obtain legal advice.
Despite the nationwide lockdown, the Family Court is continuing to operate and deal with urgent matters, given it is considered an essential service. The Family Court will continue to deal with all matters concerning personal safety and the wellbeing of children, including proceedings relating to family violence and care and protection matters. This includes shared care arrangement disputes and contraventions of parenting and guardianship orders.
If you have any concerns or queries at all regarding shared care arrangements, please contact Joshua Shaw
or Courtney Donaldson
*As with all aspects of this COVID-19 situation, matters are changing and evolving at a fast pace. The above advice reflects our current view based on the information we have to hand at this time. Accordingly, it is subject to change so please get in touch for the most up to date guidance and advice.
Wynn Williams is a member of SCG Legal, a global network of more than 110 independent law firms with both legal and public policy practices serving businesses in all 50 U.S. state capital cities and the District of Columbia, as well as capital cities and major commercial centers in more than 50 countries. SCG Legal has developed a COVID-19 Global Resource Center, which is focused on up-to-date legal and public policy developments from more than 25 different countries and most U.S. States. To access it, visit scglegal.com/coronavirus-resources.