Many parents of children subject to Child Arrangements Orders (CAO) made by the Family Court have understandably been concerned about adhering to the requirements of these orders during the current Coronavirus Crisis. Parents are reminded that the Stay at Home Rules issued by the Government on the 23rd March 2020 do deal specifically with child contact arrangements. The guidance states that: “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This is an exception to the mandatory “stay at home” requirement however, it does not mean that children must be moved between homes.

The decision therefore is one which must be made by the parents of the child after a sensible assessment of the circumstances, including:

  • the child’s present health,
  • the risk of infection and
  • the presence of any recognised vulnerable individuals in one household or the other.

 

Accordingly if anyone in your household has symptoms of Coronavirus and you are therefore self isolating you should not be sending your child for contact with their other parent or receiving a child for contact from the other parent. Similarly if anyone in the other parent’s household has symptoms of Coronavirus and they are self isolating you should not be sending the child for contact with the other parent or receiving the child for contact from the other parent. If the child is poorly with symptoms which could be Coronavirus you should also not be sending them for contact and the other parent should not be receiving them for contact. If you would normally use public transport to facilitate contact you should consider asking for help from the other parent to avoid this or make alternative arrangements.

Guidance has been issued by The Rt Hon Sir Andrew McFarlane President of the Family Division and Head of Family Justice on the 24th March 2020, which can also be accessed here: https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/. Advice for families has further been made available by Cafcass in a document titled “Co-parenting and child arrangements in a global pandemic.”  Both documents place emphasis on sensible agreements being reached between parents wherever possible. Cafcass also stress the need for children to maintain their usual routine of spending time with both parents. Cafcass state that doing this will maintain a sense of consistency and also reassurance for any child that the parent they don’t always live with is safe and healthy.

The President’s Guidance makes clear that, generally speaking, the best way to deal with these difficult times will be for parents to communicate with one another about their worries and what they think would be a good, practical solution. The following scenarios are set out within the guidance, namely:

  • Where parents, acting in agreement, exercise their parental responsibility to temporarily vary the CAO, they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message.
  • Where parents do not agree to vary the arrangements in the CAO, but one parent is sufficiently concerned that complying with the CAO would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one they consider to be safe.
  • Where a child does not get to spend time with the other parent, as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and other parent within the Stay at Home Rules, for example remotely by Face Time, WhatsApp, Skype, Zoom or other video connection or if that is not possible by telephone.

 

Parents should note that where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.

It should further be noted by any parent seeking to vary a CAO, which is not agreed between the parents or is questioned by the other parent, the Family Court is likely to subsequently look to see whether each parent acted reasonably and sensibly in light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

If you do need to go to court at this time, any parent will need to understand that the court will be prioritising urgent cases and therefore you should be prepared for a phone or video link hearing and the necessary arrangements for that will need to be made. The central message is to follow government guidance, act sensibly and where needed make practical alternative arrangements.

If you require further advice or assistance or simply wish to discuss a matter in relation to yourself or a client please do contact our clerking team. Our clerks can make arrangements at short notice and at your convenience for a remote conference or hearing, either by video or an audio call, with a barrister from our Family Team.

Manisha Marwaha, Head of Family Team.