Health Care Workers and their right to family life/ Contact arrangements during the pandemic
16th April 2020
Over the last month the public have been applauding healthcare workers for their dedication and the risks that they are facing in providing health care to those infected by COVID-19. If you talk to any healthcare worker they tell you about the extreme pressure they are put under both physically and emotionally at work. In addition to this, many healthcare workers also have to make difficult decisions about their home life for the period during which they will have contact with people who are or may be infected with COVID-19.
In families where both parents live together, the arrangements will usually be a joint decision. The family will have to decide whether the healthcare worker should remain living in the family home and if they do, what steps they will take to minimise the risk to the rest of the family in contracting COVID-19.
However, where parents are separated it becomes much more complex. Parents who when together would have been able to find a compromise, are often unable to do so once they have been separated.
The family of a healthcare worker are clearly more at risk of contracting COVID-19. Both parents are likely to want to protect the children of the family, however, if a healthcare worker is removed from the children's lives then there is a risk it could cause damage to their relationship and to the security and well-being of the children themselves. It may be thought that in the short term and with the right support, children will be resilient to this. However, the reality is that health care workers are likely to be in contact with people who have contracted COVID-19 for some considerable time.
Unfortunately, in some family breakups, the relationship between the parents can become extremely strained and on occasion toxic. Children are often caught in a tug-of-war with both parents desiring residence of the children and they often lose sight of the harm their conflict is causing to the children. If one of these parents are a healthcare worker, the other parent can instantly find a justification for separating the children from that parent. In cases where there is already an element of parental alienation, it is not hard to imagine how the children could be turned against the healthcare worker by justifying restrictons on contact and live with arrangements.
Where the parents are not able to resolve this issue with each other than they would have to make an application to the court for a child arrangements order to determine where children live and what contact they have with the other parent.
The court will decide on these issues by considering that the paramount consideration is the child's welfare and the welfare checklist will be applied. A full copy of the welfare check list can be found here https://www.williscroft.co.uk/family-law-faqs
In these circumstances the court will be considering as one factor any harm which the child has suffered or is at risk of suffering. In COVID-19 cases the court will have to weigh up the risk of harm to the children in contracting the infection by having contact with a healthcare worker parent against the risk of harm to the children if they do not have contact with them. However, this is one factor among others the court have to consider. The court would also have to consider alongside general considerations the ascertainable wishes and feelings of the children concerned considered in light of their age and understanding; what their physical emotional and educational needs are; and also the effect of any change in circumstances on the child, for example by not having contact with their parents who is a healthcare worker.
There is no immediate answer for healthcare workers about what is right for their family. It is about balancing a number of factors relevant to their particular circumstances to decide what is in the welfare of those children. It would also be advisable to seek expert legal advice if there is a conflict between the parents that is difficult to resolve.
It should also not be forgotten that the court also have to consider the Human Rights Act and in particular Article 8 which provides a right to respect one's private and family life, his home and his correspondence. This applies to the right of everyone in this country to contact with their children. However, there are restrictions to this right which includes the need to protect public South safety and health. So again, it is a matter of balancing a number of factors to decide the right course of action.
It is clear that there are risks to the family of healthcare workers however, it is important that families are not fractured, children are not harmed in ways that can be avoided. At present it is extremely unclear to members of the public when COVID-19 testing will be routinely available and to what extent it will be undertaken. One resolution to many of these issues would be the health care workers with families to have access to regular testing so the risks to the family can be minimised by early identification of them contracting the virus.
For further advice about these issues please contact Williscroft and Co on 01274 305380.
Contracted with the Legal Aid Agency. Regulated by the Solicitors Regulation Authority. Reg.No. 67202.
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