Child Arrangements During COVID-19

Family Law

Many separated Parents across the Country are presently wondering what their legal and moral obligations are to their children, and to the other Parent, in respect of usual contact arrangements. Parents simply want to know where they stand and whether they can still seek access to the Courts, if they need to…

We have carefully considered the current judicial guidance and would urge any separated Parent to take 5 – 10 minutes out of their day and read the below guidance :

Many thousands of Lawyers across the UK will now be set up to work from home, and the realisation that this may be the norm for a period of many months is now beginning to dawn upon us all. All separated parents still have access to legal advice, it is just not direct face to face legal advice and will now be by way of telephone, skype or alternative video conferencing.

Solicitors, Barristers, Judges and the Courts are still operating and guidance has been issued that : “There is a strong public interest in the Family Justice System continuing to function as normally as possible despite the present pandemic” and that “it should be possible to continue substantially the full operation of the family justice system, albeit on a remote access basis”.

We have received a number of enquiries from both new and existing clients querying what the present legal position is in respect of child arrangements; both those subject to an existing active Court Order and those who have no formal arrangements in place. Put simply, people are asking, “Can I breach my existing Court Order?” or “What do I do if I don`t have a Court order granting me access to see my child(ren) and I am being refused access “.

Well, after some misinformation from Michael Gove and the Government last week, it has now been clarified that children (u18) from split families can move between their Parents` respective homes. The direction is not “must” and therefore each case needs to be given careful consideration as to the precise arrangements in each household. We would recommend giving some thought to each point below when considering whether direct access between households is safe and feasible :

a) Who is living in each household and are they leaving the household at all and returning? If someone is leaving, who are they coming into contact with and what is the level of risk that person coming and going could transmit the virus.
b) Is each household strictly observing the rules
c) The respective ages and existing or pre-existing health conditions of all people living at both homes
d) The locality between each Parent`s house and the transport, route and collection / returning of children between houses
e) The overall risk of infection to the child(ren) or anyone within the respective households.

Guidance has been provided by the President of the Family Division and Head of Family Justice, which is particularly helpful and the key parts are as follows :

Where parents do not live in the same household, children under 18 can be moved between their parents’ homes. This establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make 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.

More generally, 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. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.

Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a Child Arrangements Order should be temporarily varied 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 sent to each other.

Where parents do not agree to vary the arrangements set out in a Child Arrangements Order, but one parent is sufficiently concerned that complying with the Child Arrangements Order arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the 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.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the Child Arrangements Order, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

We would therefore suggest to all separated parents with children to follow these key principles when agreeing alternative arrangements with one another :

i. Think carefully about the two specific households and each point at A-E above we have cited :

ii. Be understanding, be reasonable and communicate effectively with one another to try to come to alternative temporary arrangements that best suit both your overall situations.

iii. If an agreement is reached between the Parents, record all new arrangements in written format (email or other electronic means) with both Parents retaining copies of the discussions and the final agreement.

iv. In the unfortunate event that Parents cannot agree on what the direct contact arrangements should be then regular indirect contact must take place between the Parent not living with the child / children regularly.

v. This should be constantly reviewed, depending upon Government announcements and/or weekly;

vi. In the unfortunate event that alternative arrangements cannot be agreed then seek independent legal advice.

If you do require legal advice then please do not hesitate to contact one of our Family Law Solicitors.

John Hirst
Solicitor / Director, Laker Legal Solicitors

All information is correct on the date of posting.