24 March 2020

What do I do about my Child Arrangements Order in lockdown?

As of midnight on the 23rd/24th March 2020, we have now entered a period of lockdown. Whilst the government guidance initially did not state that contact was one of the allowable exceptions to the Stay at Home order imposed by the government on us all, it was further clarified firstly on Good Morning Britain and then on the Today Programme by Michael Gove, the Chancellor of the Duchy of Lancaster, that movement between separated parents’ homes is an allowable exception to the rule.

It is clear that parental responsibility for children lies with parents and not the court. Parents should communicate with each other about the safety of their children, and if they can’t agree, meaning that one has to make a decision without the other, that decision may be subject to the scrutiny of the court later.

Make sure that any change to arrangements is reasonable in all the circumstances; if you decide to change arrangements temporarily to protect your children’s health, that of other vulnerable household members or on public health grounds, make a note of what has been agreed.

Judges will have little sympathy with parents who are unable to make decisions about their children’s best interests in these unprecedented times.

Our clear message for parents is:

The current state of emergency does not give you an excuse to breach the spirit of a court order and prevent your child spending time with their other parent.

If you agree necessary changes because of the impact of the coronavirus, make a note of the agreement.

If it is not possible for direct contact to take place because of public health guidance, indirect contact must take place by FaceTime, Skype, Zoom, telephone or other media.

The courts remain open and are largely operating remotely. There will inevitably be some interruption to ‘normal service’, the welfare of children is still the priority of the family courts. Remote hearings are taking place and the court’s powers remain in place. Solicitors and barristers preparing for and attending remote hearings are ‘key’ workers and so are able to make emergency applications, but as parents, it is your role to ensure your children are safe at this time.

It remains the case that it is in the best interests of children to have a relationship with both parents unless it is contrary to their welfare.

Cafcass have also provided guidance to help parents at this difficult time

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/

What does this mean in practical terms in the midst of a pandemic?

If you or any member of your family, including your child, are showing symptoms of Covid 19 then you must follow public health advice. This does change as the experts discover more about the nature and transmission of the virus and so you must check the current advice which is available on the NHS Direct website. The website also tells you what to do. If you or your child has to self-isolate, then you must follow that advice. This would be a justifiable reason to temporarily alter a child arrangements order. You must communicate with the other parent; if there are prohibitions in place, then do this through your solicitor, another professional involved with your family or a third party.

When the period of self-isolation is over, your arrangements go back to normal.

Travelling to drop your child off, to pick up from contact or to adhere to a shared ‘live with’ order is likely to be seen as ‘essential’ travel. If you do not do it, you are breaching a court order. If you are worried about being stopped or fined by the police, carry a copy of your order with you. As stated above the Government has published its updated guidance today which confirms children who have parents living in separate homes may travel between their parents but the public health advice and the health of your children must come first. In other words this does not mean children must travel between homes if to do so is contrary to good sense and public health advice.

If possible, put your differences aside and, as parents, work out the safest arrangements for your children. Most court orders provide for flexibility where there is agreement.

Above all else, keep your children safe. Do not expose them to the risk of the virus, ensure that their relationship with both parents is maintained. This is the best way to ensure your children come out of this physically and emotionally unscathed.

If you need to discuss your personal situation, do not hesitate to call me or one of our family law team – we continue to provide legal services to all of our clients.

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About the Author
Mathew Waddington, Partner

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