Guidance on Child Arrangement Orders during Covid-19
The Covid-19 crisis has made it difficult for many divorced and separated parents to comply with arrangements they’ve made over contact with their children.
Sir Andrew McFarlane, President of the Family Division of the High Court and Head of Family Justice, has issued some guidelines that may help parents abide by their agreements or come to other mutually acceptable temporary solutions.
Sir Andrew points out that 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.
He says: “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.”
The government has issued Rules on Staying at Home and Away from Others which make it clear that it is no longer permitted for a person to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work. This includes children.
However, the government has also made a separate statement dealing 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.”
Sir Andrew says: “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.
“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 public health 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.”
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