Child arrangements during lockdown

Posted: Friday April 3 2020

By: Rachel Roberts

Its safe to say that almost every aspect of our lives are being impacted by the Coronavirus (COVID-19) outbreak. At Stowe’s we are being contacted daily by current and new clients who are separated from the other parent of their child or children and are concerned about the impact the current lockdown is or should be having on child arrangements.

We have now been in lockdown for nearly two weeks, with measures having been introduced on Monday (23 March 2020) by Boris Johnson. These steps were intended to try to tackle the spread of the coronavirus, including new measures for enforcement in respect of social distancing and restrictions on households and businesses.  Schools had already been closed on the previous Friday, and the vast majority of people who can work at home are now doing so.

What does lockdown mean

Everyone, including parents, must abide by the “New rules on staying at home and away from others” issued by the government on the 23rd March 2020.

These rules state that you should only leave your house for one of four reasons:-

1) Shopping for basic necessities, such as food and medicine, as infrequently as possible.

2) One form of exercise a day, alone or with members of your household.

3) Any medical need or to provide care or assistance to a vulnerable person.

4) Travelling to and from work, but only where this absolutely cannot be done from home.

Initially, these rules made no provision for what would happen in relation to children from separated houses, causing some initial confusion and worry for many parents. Indeed, we had clients contact us to say that parents were refusing to return children to them as provided for in Court orders and relying on the above.

Child arrangements during lockdown

Happily, some guidance has since followed which specifically deals with separated parents and the continuation of child arrangements, whether they are informal arrangements or in accordance with court order.

This additional guidance states:

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes”.

It is important to note that there is no precedent in respect of the movement of children across different households due to the impact of COVID-19.

The decision as to whether to move a child between respective parents’ homes is for the parents to assess, taking into consideration the child’s health and health of the household, risk of infection and the presence of any recognised vulnerable individual in either household.

It is clear from the guidance that it is permissible for those under the age of 18 to move between separated parents.

Child arrangements orders

Where there is a Child Arrangements Order in force, this must be complied with and if there is non-compliance, it may be possible for the other parent to apply to the court to enforce the terms of the order.  The parent that has breached the order may seek to argue that they had a justified and reasonable excuse for not doing so.   The approach of the courts will be to consider each case on the individual circumstances, for example whether it was necessary to follow self-isolation rules. As ever, the welfare of the child will be at the heart of how the Court approaches this. Parents may also agree to change the pattern of contact in order to limit the handovers between households, or to deal with the fact that most arrangements will have been built around school attendance.  If an agreement cannot be reached, the terms of the Child Arrangements Order should be followed, so far as is practicably possible.

The courts have made it clear that where there is no agreement between parents to vary the child arrangements, then one parent may exercise their parental responsibility and vary the arrangements to one that they consider safe. However, if the other parent questions this decision the family court will look to see whether each parent acted reasonably and sensibly in light of the government guidance and the rules in place at the time. Parents therefore need to give real consideration as to whether it is necessary to change the child arrangements and be prepared to justify any decision they choose to make as the court will not tolerate the current circumstances being used as an excuse to vary the child arrangements unilaterally and unnecessarily.

Maintaining routine, with or without an order

CAFCASS (the government agency that represents children in family court cases) has also issued guidance and made the position clear that apart from medical/self-isolation reasons, children should spend time with both their parents and maintain their usual routines as much as possible. This therefore applies regardless of whether there is a court order in place. They advised if there is a current order, this must be complied with unless to do so would put the child at risk.

It may also be necessary to implement alternative remote arrangements such as telephone calls or FaceTime, if for example it is necessary to self-isolate.

The importance of communication.

Parents should do their best to communicate and work together to find a practical solution in the best interests of the children.  This is not always easy, but the court will expect parents to have done their utmost. Mediation is an option that may assist, and many mediators are offering this remotely.

Court as a last resort

If parents cannot agree as to how child arrangements should be varied, then the court is still hearing cases remotely to determine such issues, but this should be as a last resort. We are finding that many hearings are being delayed and therefore this is unlikely to offer a quick fix to lockdown issues, so all efforts should be made to resolve issues without court intervention.

If you are experiencing problems agreeing arrangements or interpreting an order, it is worth taking legal advice on your position to ensure that you are making a fully informed decision.

Why not read our latest articles on our working mother magazine MMB Magazine click here….