These are unprecedented times. Never before in our lifetimes has much of society been ordered by the government to stay in their homes with limited exceptions, have schools been closed and our civil liberties been so restricted by the state.
For separated parents across the country dealing with child arrangements and coronavirus, such restrictions give rise to obvious issues. With children not in schools and nurseries, what are working separated parents to do with children during the working day? And what about when the children are supposed to spend time with the other parent – are they supposed to go to the other parent’s house or to stay at home, as we have all been ordered?
The initial advice from Michael Gove on behalf of the government on child arrangements and coronavirus was that children passing between parents should be kept to a minimum. However, this was quickly rectified and the following official advice was given:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
On 24 March 2020 more detailed advice on child arrangements and coronavirus was provided by the President of the Family Division, Lord Justice McFarlane. The child arrangements and coronavirus guidance is intended to be of general use, as different circumstances will require different approaches. The guidance focuses on breaches of child arrangements orders, but the spirit of the guidance can apply to all separated parents, regardless of whether they have a formal court order which regulates the child arrangements or an informal agreement. The guidance provides:
1. Parental responsibility for a child who is the subject of a Child Arrangements Order [‘CAO’] made by the Family Court rests with the child’s parents and not with the court.
2. The country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time. Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23rd March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales [‘PHE/PHW’].
3. The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
4. 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.
5. More generally, the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.
6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
7. Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, 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 acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.
8. Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, 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 within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone. The key message should be 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.
It is fair to say that the courts appear to be looking to expand on the government’s advice on child arrangements and coronavirus, which is potentially too simplistic. Essentially the guidance is that children should continue to see both parents in person, provided that it is safe and reasonable, given the current circumstances, to do so.
It is likely that the majority of separated parents will be able to take a pragmatic approach and come to an agreement between themselves, taking account of the above principles and their particular circumstances. However, there are also likely to be some parents who are not able to come to an agreement either as they perceive the situation differently or, in some cases, as one party is attempting to use the current circumstances to prevent the other parent seeing the children.
The guidance on child arrangements and coronavirus indicates that the courts are not expecting to deal with enforcement of child arrangements orders at present and may only do so once the current threat has passed. However, only cases where there are persistent breaches of an order, or where there is no order but there are wider issues with the child arrangements, will end up going through the courts. In such cases, children being withheld during the coronavirus crisis by one parent will be considered in the wider circumstances of the case and might well have an impact, or significant impact on the outcome of the case.
Where contact is reinstated after this period, however, there may be limited remedy available for those parents whose children were unreasonably withheld from them by the other parent. For those parents, we advise that a detailed record is kept of what has happened during this period is kept and that legal advice is taken quickly if agreement cannot be reached. It might be that where parents are unable to demonstrate that they have acted in the children’s best interests during the crisis that this could affect the ordinary contact arrangements post crisis.