The Government has confirmed that children of parents who are separated are able to move between households during the Coronavirus lockdown. This is an exception to the mandatory Stay at Home Rules. This may ease the worries that parents have when their children are the subject of a Child Arrangement Order (CAO) and fear that they will be in breach of a court order. Parents will also be conscious of keeping their family safe and healthy during these difficult times. Fortunately, the Courts and Judiciary have issued some advice to assist concerned families.
Child Arrangement Orders – can these be varied?
The Courts and Judiciary have issued advice following the Stay at Home Rules announced by the Government on the 23 of March. The courts key message is 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.
Parents are able to make temporary variations by agreement to any existing arrangements with children, and should record this agreement in an email, note or text message. If one parent does not agree to vary the arrangements the advice states that you can vary the arrangement if it is safe and reasonable to do so. The Court will look to see whether the parents have acted sensibly after the event in light of the official advice.
Advice from the Court and Judiciary
The full advice is given below:
- Parental responsibility for a child who is the subject of a CAO made by the Family Court rests with the child’s parents and not with the court.
- Parents should care for children by acting sensibly and safely when making decisions regarding arrangements for their child. Parents must abide by the Rules on Staying at Home and Away from Others” issued by the Government on 23 March
- The Stay at Home Rules make it clear that any person, including children, should not be outside for any purpose other than a medical need, attending essential work, shopping for essentials and daily exercise.
- Children under 18 can be moved between their parents’ homes. But it does not mean that children must be moved between homes. This is a decision that must be made by the parents 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.
- Parents should communicate with each other and think of practical solutions. It is entirely reasonable for one parent to be genuinely worried even if the other thinks it is sensible for contact to take place.
- If parents agree that they should temporarily vary the arrangements set out in a Child Arrangements Order they are free to do so. It is sensible for each parent to record their agreement in a note, email or text message sent to each other.
- Where parents do not agree to vary the arrangements, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current Public Health advice, that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If 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 has acted reasonably and sensibly in light of the official advice and specific evidence relating to that family.
- 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 the other parent by means of video technology or if that is not possible by telephone.
What if one parent is refusing contact because of the lockdown?
A parent should not feel pressurised by the other if they think that they will be going against government guidance. Children and parents should not be placed with anyone whom they come into contact with at risk of infection. Likewise, the lockdown should not be used as a reason to prevent contact when it is reasonable and safe to do so.
There may be incidents where sadly it is not possible to move children between households due to the higher risk of contamination with parents or household members who may be shielding if they fall into vulnerable categories. Parents should be facilitating contact remotely by video conferencing or telephone.
If you are concerned that your child has an existing health condition, you are pregnant or someone in your household is vulnerable to the impact of the virus then you should follow the Public Health England medical advice.
Everyone’s circumstances are different and if you need specific advice please contact our Family team on 01619414000 or email us at firstname.lastname@example.org
We also recommend paying close attention to any new government guidance at www.gov.uk and following our COVID-19 blog series.
Court and Judiciary guidance
Read about Guidance on Compliance with Family Court Child Arrangement Orders
Contact centres are suspending offering face to face contact but continue offering their services using technology where this is possible, the latest COVID-19 updates are available on their website
Cafcass are now working remotely and have issued some useful guidance for those who may have a Cafcass officer working on their case in their advice for parents and carers page.