The impact of the Coronavirus on child arrangements
Over the past couple of weeks we have seen a dramatic and unprecedented change to the way we live and the way in which we interact with each other. These changes, including the Government guidance and Stay at Home Rules have not only impacted upon family lives but have left several clients asking what it means for them.
We hope that the following information provided here will answer some of the questions raised. The comments below also take into account recent guidance provided by The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice.
"Does the recent Coronavirus guidance prevent contact arrangements?"
Recent guidance has stated that:
- Parents must abide by government advice, including the Stay at Home Rules, in order to stay safe and reduce the spread of infection and this advice also applies to a child. This means that you and your children should “not be outside your home for any purpose other than essential shopping, daily exercise, medical need or attending essential work”.
- However, Government guidance goes on to say: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” This is an exception it does not mean that children must be moved between homes.
"I see my children every other week, but the other parent is now saying this is going to stop. Can they do so?"
Whilst there is an exception, allowing children to move between homes, the decision as to whether it should is a separate matter. Recent guidance states that the decision as to whether the child should move between homes and see the other parent is a matter for the parents to consider “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. So one has to consider several factors, including, but not limited to:
- Is the child susceptible? This also needs to take into account whether the child is aware of the Coronavirus situation and whether they are displaying any fears or concerns.
- What is the risk? This will depend upon several factors including the length of any journey (will it solely be by car), the dangers of using public transport and who will the child come into contact with during the contact visit – are those individuals at risk – are they susceptible or are they continuing to work and travel, thereby increasing the risk that they will pick up or transmit the Coronavirus.
- Who does the child normally live with and when the child returns from their time with the other parent will they then, potentially, expose the people they live to – are those people susceptible?
"We have a Child Arrangements Order [CAO] in place but do not know whether to let the other parent see the child?"
As mentioned above, there is an exemption allowing ongoing contact but you still need to assess the position. If both parents live close to each other and both are self-isolating and there are no other risk factors, then that might be a care where the children can be moved between parents. However, a risk assessment should still be undertaken.
"If we amend our arrangements, including the terms of a Court Order, do we need to go back to court?"
If there is no order in place then you can amend any arrangements between yourselves, but it is sensible to keep a note of any agreement. If there is a Child Arrangement Order in place then this might include provision for variation. Even if it does not the Guidance provides for the existing pattern of contact to be amended by agreement so first try to communicate with each other and be alive to the fact that the other parent or the child may have genuine concerns and worries. If you do decide to amend the arrangements then record the terms of the variation in a note or through an exchange of emails or texts – if related to the Coronavirus then these amendments should be temporary. If you agree an amendment of a court order then make a record of the agreement – if you do agree then you do not need to go back to the court.
"What if we cannot reach an agreement? Can I still insist that I see the children?"
If the parent with whom the child lives restricts contact, as they express concerns as to the child’s welfare or the welfare of someone in the household, then that parent can exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, there is an existing court order, then on a future application the court will have to consider whether, in all the circumstances, they acted reasonably. Whilst each case is likely to be determined on its facts the general position being people, including children, should “stay at home” and whilst an exception applies to children seeing both parents it does not override this basic position.
"We have agreed that the children will stay with me and so no contact will take place. Do we need to do anything else?"
Again, record what has been agreed. If a child does not get to spend time with the other parent then arrangements should be put in place to allow the other parent and the child to maintain contact so consider remote contact arrangements (Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
"We cannot reach an agreement. What can we now do?"
Unfortunately the court system is under significant pressure so unless your case is urgent you are likely to struggle to get a court hearing date any time soon. There are other options including:
- Collaborative Law
- Family Law Arbitration
Whichever option you choose you are likely to find that any meetings or hearings will take place remotely, namely by some form of video conferencing. If you are unable to reach an agreement then there are still ways to resolve disputes.
The general position being that the courts normally expect the parents to try and resolve the issues as to where a child will live and also when and how often they will see the other parent. The difficulty being that we are now in unprecedented times.
The key message from the President of the Family Division being 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.
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If your business needs legal support with any issues arising from COVID-19, please get in touch with Stephen Smith.
All information in this document is accurate at the time of writing. It is meant for general information only and is not legal advice.