Covid-19 and children orders – complications in the time of pandemic

Earlier this week, I wrote about parents’ concerns surrounding  Covid-19 and what the Government’s lockdown plan would mean for their child arrangements.

However what has become clear from speaking to clients old, existing and new is that for many, matters have not been quite as straight forward as simply keeping arrangements going as usual (on 23 March 2020, the Government’s Stay at Home rules made it clear that children of separated parents were still able to travel between their homes).

Examples have included:

  • A parent with whom the children currently are spending time starting to show symptoms and being advised by 111 that the family should self-isolate;
  • Where those living in one household included three vulnerable adults;
  • A parent considered to be high-risk;
  • Someone whose co-parent works in a people-facing role in an essential business;
  • A couple of families where others living in their households work for the frontline NHS treating Covid-19 patients; and
  • A worried mum whose child usually spends a few hours with their father in a public place every weekend.

Sir Andrew Macfarlane, President of the Family Division, has issued some helpful guidance on what should happen with child arrangements orders in the Family Court that are impacted by the knock-on effects of Covid-19.

The key points are:

  • Parents must act sensibly and safely when making decisions regarding arrangements for their child, where and when the child spends time;
  • Parents must abide by the “Rules on Staying at Home”, but subject to the exception for separated families, enabling children to travel and see both parents at their homes, so long as it is safe to do so;
  • However, this is not to say children must be moved between homes;
  • Parents must make a sensible assessment of the circumstances, with considerations to include:
  • Child’s present health;
  • Risk of infection; and
  • Presence of any recognised vulnerable individuals in one of the households.

The President is clear that communication between parents is the key to successfully resolving their worries and agreeing what is best for their child.  He recognises that people will worry about Covid-19, their own health, their children and family, and that whilst one parent may not be concerned, the other may have very real worries.

Where a court order is in place

Where parents agree and a court arrangement is in place:

  • They can exercise their parental responsibility to temporarily vary the arrangements in the court order (setting this out in writing together would be sensible);

However, in each of the examples I mentioned above, the parents could not agree. One parent wanted the usual arrangements to go ahead, but the other was worried.  In this case, where parents cannot agree:

  • If one parent is concerned that complying with the order would be against Public Health England advice that parent can use their parental responsibility alone to vary the arrangement – the change must be to an arrangement that they consider to be safe for the child.
  • No examples are given of when this should apply, however, the court is likely to approach this on a case by case basis, and if asked to assess this in a review of the order, the judge is likely to consider whether each parent acted reasonably and sensibly in light of official advice and the Stay at Home Rules, together with any evidence that is specific to their circumstances.

If arrangements don’t go ahead as planned:

  • The expectation is that parents should make alternative arrangements, both to make up the “missed” time in the future and also in terms of indirect contact in the interim – such as WhatsApp, FaceTime, Zoom etc.

 Key message

The President’s key message was “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”.

Where there is no court order

Where there is no formal court order in place, on the face of it parents are free to choose what they want to do. However, in making a decision, it would seem sensible to follow the President’s guidance.

The key point in circumstances where there is no order and no agreement between parents is whether a parent has parental responsibility or not, and therefore whether they can make a decision unilaterally or not.

A birth mother will automatically have parental responsibility, and fathers often will, but sometimes not.  It is worth checking before making a unilateral decision.

How does this apply to me / my colleague / my friend / my contact?

Every family set up is different, and everyone’s experience of lockdown and the impact of Covid-19 will be different.

There isn’t a “one size fits all” solution and many parents are bound to disagree as to what is best in these circumstances, especially where one parent is faced with not seeing their child for weeks.

It is therefore important to seek legal advice as soon as possible (and not shortly before a handover or time with another parent is due to happen) so that you can make an informed decision with the benefit of expert guidance as to what is in the best interests of the safety and welfare of your family

If no agreement can be reached and a decision has to be made unilaterally, it is important that this is done properly, considering all the circumstances, the short-term implications and the knock-on impact in the long-term.

The court isn’t going to have the capacity or time to deal with every single Covid-19 child arrangements case, and any court application wouldn’t be heard for a few weeks in any event and in my experience, the court order is never the magic solution parents hoped it would be.  Children change, their needs change, family set-ups change, and parents rarely find the solutions on that piece of official paper.

However, I can see in circumstances where one parent has unilaterally made a choice that the other parent is frustrated and disappointed by, they will feel as though they have no option but to resolve this through the court and have a more formal arrangement put in place for the long-term.

If possible, it is worth avoiding court and exploring one of the myriad of great out of court options, where third parties can help resolve issues (or, in the case of arbitration, make a binding award).  Many non-court options are available at short-notice and can be done via video link, meaning that you don’t have to wait for a court hearing, can work to times that suit you, can keep the conversation flowing, and can come up with a bespoke agreement that works for your family.

If you would like to discuss your circumstances, please do get in touch.

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