The emergence of COVID-19 on a global scale has been a shock to many people and as we all try to adjust and change to limit the burden on our health system as well as others, a number of practical issues for parents have arisen. So much so that the Government have given specific advice in terms of how children of separated parents can move between households as an exception to Stay at Home Rules which came into effect on Monday 23 March 2020.
If you are a separated parent, then the Government's advice needs to be considered alongside the other guidance provided by the Children and Family Court Advisory and Support Service (CAFCASS) as well as the President of the Family Division. Needless to say, the current situation is having a dramatic effect on the landscape of child arrangement and contact.
Timeline of Advice
Any actions that parents take in respect of contact during this time may come under scrutiny at a later stage and so it is important to detail a timeline of advice on the topic so that any measures put in place can be compared against the relevant advice at the time.
20 March 2020 - CAFCASS issue Co-parenting and child arrangements in a global pandemic - advice for families.
23 March 2020 - The Government's Stay at Home Rules came into effect specifically setting out that: "Where parents do not live in the same household, children under 18 can be moved between their parents' homes."
24 March 2020 - The President of the Family Division the Rt. Hon. Sir Andrew McFarlane publishes his Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders.
The Guidance: Key Points
CAFCASS' advice is that "Unless there are justified medical/self-isolation issues - or some future nationally issued guidance or expectation associated with leaving the house in your area - children should also maintain their usual routine of spending time with each of their parents. If there is a Child Arrangements Order in place this should be complied with unless to do so would put your child, or others at risk".
The Government's guidance is clear and it was even clarified by a tweet from Michael Gove, children under 18 can move between the houses of separated parents without falling foul of the Stay at Home Rules.
The President of the Family Division clarifies the position further by saying "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".
During these difficult times, it is key for parents to consider the risks appropriately but also balance them against the benefit of children spending time with both of their parents. Any alternative arangements proposed should consider the quality and frequency of contact.
There are a lot of different ways children can spend time with their non-resident parents over video apps that are engaging, with games or activities. Some parents may enjoy carrying out usual activities with their children remotely like playing board games, singing or even watching a film together whilst on a video call. It is also important for both parents to consider their children's physical and mental wellbeing whilst being asked to stay at home and make sure they are not exposed to any parental disagreements. This can be difficult when everyone is in such close proximity. Considering space, children should also be given a safe quiet place to spend time with their non-resident parents. This is essential for children but also some resident parent may want to limit where video devices are taken in their home for their own privacy.
There are a number of online resources to help parents evaluate their parenting relationship, one being the charity Click:
If an Agreement Cannot be Reached
The President's advice relies on parent's exercising their parental responsibility in deciding what is best but often parties are so embittered that this is not practically possible. He goes on to set out that "Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with CAO 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".
Whilst this does seem to give the resident parent unilateral powers to vary Court Orders, they would fall under the same scrutiny that a breach would have to satisfy under section 11J on the Children Act 1989, in that the Court would need to be "satisfied that the person had a reasonable excuse for failing to comply with the provision".
The Practical Implications of Unilateral Changes
Whilst parties may feel changes to Orders do not constitute a sensible assessment or a reasonable excuse, Court intervention is something that should be considered carefully. How the Court will deal with these matters is unprecedented but of greater concern is the Court's ability to deal with a possible influx of applications when the system is already stretched with many staff self-isolating and much of the Court's current efforts going into adapting their policies and systems to deliver telephone hearings. In any event, an applicaion at this time will more than likely be delayed.
An alternative option parents may wish to consider in the interim is arbitration and this is something they should explore if matters need faster resolution.
Tips on Implementing the Guidance
Get in touch
If you need further advice or are experiencing difficulties, please contact one of our experienced Family Team Members. If an agreement cannot be reached, in the first instance we can help by trying to agree a way forward through correspondence. If this is not successful, there are a number of options and we can set up Arbitration or if necessary make an application to the Court.
In parting, it is important for families to heed the President's final words:
"The key message should be 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.
By Umar Mirza, Trainee Solicitor