Approach to Child Arrangement Orders in light of Coronavirus Stay at Home Restrictions

On Monday 23 March 2020 the UK government introduced further measures in response to the coronavirus outbreak, which included major nationwide restrictions requiring people to stay at home except for very limited purposes (the ‘Stay at Home Rules’). The relevant authorities including the police are to have the power to enforce these measures including through fines. Such restrictions are due to be reviewed after 3 weeks. This has led numerous separated parents to question whether they can comply with the terms of their Child Arrangements Order safely, and what they should do if not.

The President of the Family Division and Head of Family Justice has on 24 March 2020 now issued some general guidance in respect of Child Arrangement Orders in order to assist members of the public. The guidance does make clear however that as the circumstances of each child and family will differ, any advice can only be in the most general form. In summary, the general advice is as follows:

Parental Responsibility for a child rests with the child’s parents, not with the Courts, even where a Child Arrangements Order is in force.

Given the current public health crisis, the expectation is that parents will act sensibly and safely when making decisions as to child arrangements, bearing in mind the need to abide by the Stay at Home Rules, and advice provided by Public Health England and Public Health Wales.
The Stay at Home Rules have made the general position clear: it is no longer permitted for a person (including a child) to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
The Government Guidance to the Stay at Home Rules (dated 23 March 2020) specifically deals with child contact arrangements through in that it states that “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, but it does not 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.

Generally speaking, the best way to deal with matters is for parents to communicate about their worries and try to reach a good, practical solution. Given that many people are very worried about coronavirus and the health of family members, 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 it.
Where parents, acting in agreement, conclude that the arrangements set out in a Child Arrangements Order should be temporarily varied they may do so, although it would be sensible for each parent to record such an agreement in a note, email or text message to the other.
Where parents do not agree to vary the terms of a Child Arrangements Order but one parent is sufficiently concerned that compliance would be against current Public Health England/Wales 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 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.
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.

Whilst the above general advice has been issued in order to assist members of the public, it has been specifically acknowledged that the circumstances of each child and family will differ. In the event of a dispute between parents, it may, therefore, be very beneficial to seek early advice from a family solicitor.

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