In these uncertain times we are all facing daily dilemmas to what is necessary or essential. This can range from buying the extra packet of toilet rolls to whether your job is essential enough to warrant travelling on public transport or your children attending school.

In light of the government guidance issued on 23 March 2020 (the rules on staying at home and away from others), recently updated on 05 January 2021, it is no longer permissible for anyone, adult or child, to be outside their home for anything other than essential shopping, daily exercise, medical need or attending essential work. On the face of it, this meant that the children of separated parents should consider themselves isolated in the household of one or other parent for an undefined period of time.

However, importantly, the government guidance also stated that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” This, therefore, establishes an exception to the mandatory ‘stay at home’ requirement for the children of separated parents.

Children CAN move between their parents.

Do Child Arrangement Orders have to be obeyed regardless of the pandemic?

Does that mean that a failure to continue to adhere to the terms of a Child Arrangements Order puts a parent in breach of the order? The warning included on most such orders is a stark one threatening the risk of imprisonment, fines or personal assets being seized.

It should be enough to strike fear into the heart of any parent. However, the potential contradiction between the general government guidance/fear of spreading Covid-19 and the free transition of children around the country has been addressed by the courts.

On 24^th March 2020, further guidance was provided by the most senior family judge as to how to deal with this dilemma. Crucially, he wrote, regarding the guidance that children CAN be moved,

“it does not, however, mean that children must be moved between the 2 homes”.

The guidance from the judge reminds parents that it is them rather than the courts who hold parental responsibility for their children and them who must make safe and sensible decisions when deciding where and when a child should spend time during this crisis.

He stated: “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.”

Parents should try to communicate and agree

The judge urged parents to try to communicate their worries. Even if one parent feels contact would be safe, he wrote, “it might be entirely reasonable for the other parent to be genuinely worried about this”.

Parents are advised to share worries with the other parent. And to try to agree to vary the order. Most orders will include a provision that there can be ‘such further or other arrangements as can be agreed’. Even if this clause is absent, where parents, acting in agreement conclude that the arrangements set out in an order should be temporarily varied they are usually free to do so unless social services are also involved with the child.

If you cannot communicate or feel your worries are not being listened to then speak to a solicitor who can communicate your fears of contact going ahead or being suspended with the other parent.

To avoid misunderstanding as to what has been agreed and reassure all concerned that a child will be concerned it would be sensible for each parent to record any agreement which is reached in a note, email or text message sent to each other.

What if I want my child to spend MORE time with their other parent?

Many keyworkers on the front line in the crisis are in urgent need of assistance with childcare. They might fear that, even if their child has an ongoing place at school, this does not cover their nightshifts or weekend work. They may fear that sending their child to school exposes others to risk. Schools are urging parents only to send their children in if there is no other parent who can care for them.

In those circumstances, either or both parents might agree it would make good sense for the key worker parent to agree to the child spending MORE time, or even be isolated, with their non-residential parent.

Equally, if a parent is themselves a vulnerable person by virtue of their age or health condition, they might reluctantly feel it isn’t safe for their child to visit. It is to be hoped these types of situations would be capable of agreement, but they are not without worries.

Will it affect the status quo?

Parents who have been involved with the courts will be well aware of the importance placed upon retaining the ‘status quo’ for a child in order to give them stability. Presently, there may be situations where a parent fears that agreeing to their child spending all, or more, time with the other parent will establish a new ‘status quo’ which it will be hard to return from. This is a reasonable fear when no one knows how long the current situation will prevail. Realistically, it will impact on children’s views about where they are settled and living.

However, these are unprecedented times and that will have a bearing upon how judges look back on interim arrangements. It might be advisable to record an agreement in writing, even by text, that any arrangement put in place for the time being is not intended to change the long-term arrangements.

If you are in agreement with your child staying with the other parent but feel this may be used to change future arrangements, it would be best to obtain legal advice about the specific facts of your case.

In cases where agreement cannot be reached

There are plainly many situations where agreement cannot be reached. Parents will assess risk differently. Parents may fear the guidance tightening when the children are with the other parent or the other parent retaining the child without good public health reasons. Every effort can be made to try to alleviate these fears with written agreements, but they are rarely watertight.

The guidance from the family courts is that if one parent is sufficiently concerned that the movement of their child between households would fly in the face of safety, he or she may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. In essence, the parent can take the decision to retain the child without agreement if they consider it is justifiable.

This is a significant step and not one which should be taken without legal advice. There is no guarantee that even the most well-intended action would not be criticised. Nonetheless, if the issue were to come before a court in the future the judge is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the specific features of that family.

As with all family cases, there is no ‘one size fits all’ rule as to the right answer and this is known as a ‘case by case basis’. Whilst it is frustrating not to be certain that your decision will be accepted as reasonable, it is reassuring to know your dilemma is already in the minds of the judges.

Realistically, a common sense approach is likely to be taken to your interpretation of the guidance. If either parent lives in a household with a vulnerable person or doesn’t believe the other parent is following the strict guidance to respect social distancing rules around their household or if they have a flow of key workers or half/step siblings in and out of their home, these are the type of situations in which it would be likely to be considered reasonable to suspend the arrangements temporarily.

Is there an obligation to provide telephone contact instead?

The guidance addressed this issue directly. Where, either by agreement or otherwise, a child does not get to spend time with the other parent as previously, it is expected that alternative arrangements would 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

The focus of the family court guidance is that these are unusual times. However, even if the arrangements for a child have to be changed on a temporary basis, the spirit of the usual arrangements should be respected by making safe alternative provision. Any attempts by one parent to capitalise on the pandemic to prevent a child from keeping in touch with the other as much as is safely possible is likely to be given short shrift by judges.

The answer is, therefore, not a simple one. For many families their particular circumstances or the mutual parental mistrust means that the dilemma remains, and it is a far more pressing dilemma than anything to do with stockpiling toilet roll.

We are here to help

We are here for you and your family. We have experienced, professional and sympathetic family lawyers who can advise you on all aspects of relationship breakdown. This includes divorce, separation and the resolution of financial and children matters.

Contact us and we’ll make sure the right legal advisor gets back to you.

DISCLAIMER

This information is given to the best of our knowledge and does not constitute individual legal advice upon which you can rely. The situation relating to Covid-19 is constantly evolving and may have changed since this document was produced. For up to date advice on your own situation, please contact us before taking any action.

Last updated 27 January 2021