Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders

Posted onApril 7, 2020

Please contact OTS Family Solicitors on 02039 599123 or email us on info@otssolicitors.co.uk if you your ex-spouse or partner is blocking or frustrating contact with your child. Contact does not have to stop or be suspended because of COVID-19. We can safely assure and advise that you have a bundle of rights because of the following guidelines, but prompt action is vital

The Rt. Hon. Sir Andrew McFarlane President of the Family Division and Head of Family Justice

During the current Coronavirus Crisis some parents whose children are the subject of Child Arrangements Orders made by the Family Court have been understandably concerned about their ability to meet the requirements of these court orders safely in the wholly unforeseen circumstances that now apply.

This short statement is intended to offer advice but, as the circumstances of each child and family will differ, any advice can only be in the most general form.

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.
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 23 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’].
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.
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.
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.
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.
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.
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.

On 26.03.20 Parliament further introduced The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

Regulation 6 provides 11 examples of what is a "reasonable excuse" to be outside. The ones that are likely to be relevant to family cases are as follows:

Para h: to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;

Para j. in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, "parent" includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;

Para m. to avoid injury or illness or to escape a risk of harm.

What this means is that, where agreed, or where court ordered, the non-resident parent may continue to have contact with their child[ren] and or have them live with him or her for the agreed or court ordered specified time.

Either parent may leave their home in order to facilitate such contact, for example for collection and return of the children, whether this is from each other's homes or at an agreed or court ordered meeting place.

In practical terms, what does this mean where this is a Child Arrangements Order?

On 24.03.20 The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, issued Guidance on Compliance with Family Court Child Arrangement Orders. The most relevant aspect of the guidance in practical terms for separated parents is as follows:

Para 6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a Child Arrangements 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 [author's emphasis].
Para 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 Child Arrangements 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, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

Cafcass COVID-19 guidance for children and families in is favour and fully supports these guidelines :

“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.”