COVID-19: Legal update on child arrangements

20 Apr 2020

Many parents are understandably worried about the spread of COVID-19 and the impact of new social distancing measures upon them and their families.

The Government have issued strict measures significantly restricting movement in order to seek to try and contain and suppress the spread of the virus, which includes closing schools and directing people to stay at home, do not gather in larger groups than 2 people and not to meet with any person outside their household.

For separated parents this adds a further level of anxiety as they are unsure whether arrangements in place for them to see and spend time with their children will be restricted or prevented and indeed, whether it is safe and in the children’s best interests for those arrangements to continue.

Latest guidance from government and the judiciary

On the 23rd March 2020, the government published some guidance on the issues of child contact during the course of the current pandemic and clarified that where parents do not live in the same household, it is permissible for children to move between those households and this would not breach any social distancing measures.

This was followed by guidance from the president of the Family Division, Sir Andrew McFarlane who made specific comment on the compliance with Family Court Orders relating to child arrangements during the pandemic.

The key message from the President to parents during this difficult and unprecedented period is that cooperation and communication is key, with both parents actively considering whether to stick, halt, or to alter the current arrangements. Where agreement can be reached, the guidance is clear that it is perfectly acceptable and reasonable for the parents to implement their new agreed arrangements, rather than stick to the ‘black letter’ of the arrangements set out in any Court Order. It is, however, still sensible for any such variations to be noted in writing. This can be by way of text message or email by example and it appears clear that there would be no expectation to return the matter to Court to vary things in any formal manner.

Where parents cannot agree on whether contact should continue to take place or the frequency of any new arrangements, the guidance is clear that it would not necessarily be a breach for one parent to exercise their parental responsibility independently and vary the arrangements to one which they consider to be safe and appropriate, which can include restricting direct contact.  However, where a decision is taken either by agreement of by one parent to change the arrangements or restrict direct contact with one parent, alternative safe arrangements should be made as soon as possible, to include utilising technology such as Skype, FaceTime and video messaging to maintain contact.

If constructive conversation and agreement cannot be achieved, the arrangements and what they should be remain disputed, the parent who remains unsatisfied can return the matter to Court and the Court will make an assessment of whether or not the other parent’s decision to restrict or vary contact is in fact reasonable and justified, taking into account all the circumstances at the time and the reasoning behind the parent’s decision. Parents do need to be aware that court should be very much a last resort with the current climate, offering no guarantee that a matter can be listed and dealt with quickly.

What to do when child arrangements cannot be agreed?

Before considering taking further action where the arrangements cannot be agreed, the parent considering doing so should keep up to date with government guidelines, consider taking legal advice and consider the reasons set out by the other parent as to why arrangements should be varied.

If they, the child or anyone in the household falls into a high risk category, is pregnant or has other legitimate concerns surrounding the safety of the child and others in respect of moving between households during the pandemic, it is likely that the decision to vary or alter contact will be considered legitimate by the Court and therefore an application for force compliance with a Court Order is likely to be unsuccessful.

It is always best if the parents can adopt a pragmatic and conciliatory approach focusing on the children’s best interests and come to an agreement to make up any lost direct time, once matters have settled.

For further guidance: Children and Family Court Advisory and Support Service (CAFCASS).

Blog post written by Sabrina Powell, Associate Solicitor in the Family Law team.

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