We understand that during the COVID-19 crisis some parents might be worried about what they should do in respect of complying with a Child Arrangements Order and if contact with the absent parent ceases, whether they will be in breach of the Order.
The President of the Family Division and Head of Family Justice has provided some guidance on this:
Responsibility rests with the parents to make decisions
Parental responsibility for a child who is subject to a Child Arrangement Order made by the Family Court rests with the child’s parents and not with the Court. This means that as parents, the onus is on you to make decisions.
Parents must act sensibly and safely
The whole country is in crisis on an unprecedented scale. During this time 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” which was issued by the government on 23rd March 2020 (“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.
Current ‘Stay at Home’ rules
The Stay at Home Rules have made the 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.
Government guidance issued alongside the Stay at Home Rules on 23rd March specifically deals with child arrangement contacts and states:- “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” requirements. It does not, however, mean that children must be moved between homes. The decision whether a child is to move between homes is a decision 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 another.
Communicate to find a solution
The best way to deal with these difficult times will be for the 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.
Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangement set out in an order 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.
Where parents do not agree to vary the arrangements set out in an Order but one parent is sufficiently concerned that complying with the Order would be against the current Public Health England and Public Health Wales advice, then that parent must 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 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.
Alternative contact arrangements
Where, 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 Order, 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. An example of this would by Facetime, WhatsApp Face time, Skype, Zoom or other video connection, or if that is not possible, by telephone.
Therefore the key message being provided by the Family Court is that where Coronavirus restrictions cause a Court Order to be varied, parents should ensure that they communicate and come to a decision to make arrangements to comply with the order in a safe and reasonable way.