Covid-19 and Child Arrangements Orders

Covid-19 and Child Arrangements Orders

 

By Katie O’Connell, Solicitor at GGP Law

 

Making arrangements for children can be difficult enough even without a global pandemic. The, “Rules on Staying at Home and Away from Others” were put in place by the Government on 23 March 2020. This had a major impact on life as we knew it and placed the arrangements for children of separated parents (whether contained within a Child Arrangements Order or not) in some difficulty. There is an exemption to the stay at home rules in that:

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

However, in these unprecedented times, it is important that the welfare of any child remains the paramount consideration. This of course includes the health of the child concerned. In a very helpful statement issued by Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, he states:

“Parental responsibility for a child who is the subject of a Child Arrangements Order made by the Family Court rests with the child’s parents and not with the court. 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. This means that it is the parents of the child who are best placed to make decisions regarding him/ her. Clear communication between the parents is key and will ultimately benefit the child concerned. Even if there is a Child Arrangements Order in place, detailing the arrangements for the child spending time with both parents, it can be varied by agreement between the parents. This may be necessary where the arrangements differentiate between term time and school holidays, particularly whilst the schools remain closed to most children.”

 

Practical steps to take:

Where arrangements are varied by agreement, the guidance set out by Sir Andrew McFarlane recommends the following:

“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”.

Careful consideration may also need to be given to alternative arrangements where contact is to be supervised by a third party (who does not live in the same household), or where it is taking place in a contact centre or in the community. The “lockdown” rules will mean that this will now not be able to take place.  Any change to the arrangements to accommodate the current situation will need to ensure the safety of the child. Consideration should be given to indirect contact, so as to ensure that the relationship between the parent and child is maintained. This could be achieved by FaceTime, Skype, Zoom or by telephone. If one parent wishes to change the arrangements and the other does not agree, then the parent who wishes to change the arrangements will need to justify their reasons for doing so. Sir Andrew McFarflane comments as follows in this regard:

“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.”

As such, the current situation should not be seen as an opportunity to purposely disrupt the relationship between a parent and child. Actions taken at this stage, will be considered in due course, if necessary. Of course, the child’s best interests should be at the forefront of all decisions being made. If someone living in the household with the child displays symptoms of Covid-19, the household should follow the strict isolation rules to avoid the spread of the virus. Again, provided that the child is well enough to participate, indirect contact should be encouraged. If you are struggling with child arrangements during the pandemic, please speak to us about your available options. The Family Court remains open and operating, however, Sir Andrew McFarlane leaves us with the following thought:

 

“The key message should be that, where Covid-19 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.”