The country is in the middle of a Public Health crisis on an unprecedented scale.
Parental responsibility for a child who is the subject of a Child Arrangements Order made by the Family Court rests with the child’s parents and not with the court.
The Government has given full guidance on staying at home and away from others with some exceptions covering: any medical need, or to provide care or to help a vulnerable person. This part has a specific clause that includes moving children under 18 years old between their parents’ homes.
On 24 March 2020, Michael Gove, Minister for the Cabinet Office, clarified that children under the age of 18 moving between their parents’ homes, was considered to fall within the exceptions to the stay at home mandate – although movements should be limited to only that which is necessary.
Later in the afternoon of 24 March 2020, the Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice provided further clarification:-
Government guidance issued alongside the Stay at Home Rules on 23rd March deals specifically with child contact arrangements. It says:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
This establishes an exception to the mandatory ‘stay at home’ requirement; 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.
What does the President's further guidance mean for you?
The 'lockdown' will not prevent you from seeing your child but, the key message here is "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…"
If you and your co-parent are both well, there is nothing to prevent the normal arrangements largely continuing, albeit with added precautions.
The global pandemic should not be used as an excuse to not comply with the Court Order, nor should it be an opportunity to wind up your co-parent. You should assess where the children will be more secure and safe. You should consider the safety and security not just in your household but also the other parent's household.
Are we still in term time or, do I treat the child arrangements order as extended holidays?
The Government has taken the necessary measure to prevent the spread of this deadly disease and as a consequence all schools have been shut in aim to reduce such spread.
Unless you and your co-parent can agree to alter the arrangements, you should adhere to the Order and the situation must still be treated as term time and not an extended holiday. This makes the arrangement easier for everyone to follow and ensures that children are complying with the home schooling and tasks set by their schools.
Can I change the child arrangements order?
If you and your co-parent can agree that the Court Order is not working at this particular time, it is encouraged that you exercise your parental responsibility and temporarily vary the Order. In accordance with the President's guidance, it would be sensible for you both to record such an agreement in a note, email or text message sent to each other.
If we change the child arrangements order will this mean that the other parent can increase their contact time in the future?
In these unprecedented times, it is natural to worry and be concerned about handing your children over to the other parent as you may not want to set a precedent for future contact to be disrupted. In the event that you are unwell and need to self-isolate but, you are the main resident parent and you know in yourself that you are unable to provide adequate care to your child, you will not be penalised for the temporary adjustment to the child arrangements order. Once this pandemic passes the original Court Order should be reverted to.
What if we cannot agree?
Ask yourself, can I reasonably continue with the child arrangements under the new restrictions? You may have a number of concerns; it may be practical to write your reasons down, sense check this with someone that you trust. You may want to try to communicate your proposals again.
If you simply cannot agree whatsoever, try not to react and seek help from a solicitor, mediator or an arbitrator (these options are all still available whilst in 'lockdown' and you can access help remotely).
As a last resort you can consider acting unilaterally and make a decision without the other parent's agreement. This must only be if you feel that you are confident that you are taking a well-considered, reasonable and child focused decision, as you can be penalised once everything is back to 'normal'. In such circumstances be sure to make safe alternative proposals for your child to continue contact with the other parent, this may be via regular video calls etc.
What if I or my co-parent is experiencing symptoms?
The Government's request is clear in that everyone is now to stay at home except for a limited number of reasons and must maintain social distancing. Additionally, it remains Government advice that, if someone in your household presents symptoms of Coronavirus, the entire household must self-isolate for 14 days. If this becomes necessary, you have to communicate this to your co-parent and ensure to arrange regular video chats or phone calls for your child and the other parent. After the expiry of the self-isolation period, contact can continue and your children can move between households.
What if I or my co-parent is a ‘key worker’?
With the schools now largely closed, the Government is encouraging some schools to remain open with a skeleton staff in place for key workers such as NHS staff, supermarket staff and Police etc. If your co-parent is a key worker and you are working at home, you may want to arrange for your child to live with the other parent even if they are not the main resident parent. As mentioned above, this will be a temporary arrangement which should be recorded in writing.
What if we are both 'key workers'?
If this is the case you have to carefully consider your respective positions and it may be in your child's best interest to temporarily live with another family member such as a grandparent (if this is safe) or aunt of uncle. As parents you have to decide this amongst yourselves and agree what is in your child's best interest in such circumstances.
In instances where there is no one appropriate to care for your child, you may have to seek help and assistance from your local authority.
Can I make a court application?
If you are experiencing continued difficulties and you have explored all non-court options but, disagreement persist you can make an application to the court, whether this is to vary the Order or enforce an existing Order.
If you are found to be in breach of an Order or you are deliberately using this pandemic as a tool to control contact, please be mindful that Judges will be extremely robust. You can be faced with punishments such as;-
- a fine;
- costs of the application;
- Community work (there is great need at this time for voluntary work).
Additionally, the time that your child spends with you can be reduced and more decision making can be granted to the other parent.
You will both be judged on your reasoning and decisions. If you do not act in your child's best interest during a global pandemic your parenting capacity may be questioned and the child arrangements order may change, against your wishes.
All of our family lawyers are members of Resolution and will be happy to assist you with any Family Law issues.
For a free initial consultation please telephone on 01245 228106 or email Family@gepp.co.uk
This is not legal advice; it is intended to provide information of general interest about current legal issues.