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Coronavirus and Child Arrangement Orders by John Myers

Thu 26th Mar 2020

Much anxiety has been caused to parents by the impact of the Government’s Stay at Home Rules on Child Arrangement Orders, and particularly on the requirement for children to spend time with the non-resident parent.

Many parents are understandably concerned about the health and welfare of their children whilst, sadly, a minority will use the current situation to frustrate contact arrangements and seek some advantage over their former partner.

The Stay at Home Rules deal specifically with contact arrangements as follows:

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

Whilst this establishes an exception to the mandatory stay at home requirement, it does not mean that children must be moved between homes. It is a decision to be made by both parents “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.”

Guidance has now been issued by The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice. Advice for families has also been made available by Cafcass in a document “Co-parenting and child arrangements in a global pandemic”.

The theme of both documents is that parents should exercise their parental responsibility sensibly and by agreement wherever possible.

Cafcass stress the need for children to maintain their usual routine of spending time with both parents. It will help them to feel a sense of consistency, whilst also reassuring them that the parent with whom they do not live is safe and healthy.

Parents should communicate their worries and try to agree practical solutions. No one should feel bound by an existing Order – the court’s permission is not required for it to be altered by agreement.

Parents’ views will differ on occasion. One might consider it safe for contact to take place, while the other has genuine concerns. In such a situation the parent with whom the child lives may exercise their parental responsibility and change arrangements to one which they consider to be safe. However, such a decision may be challenged in the Family Court at a later date when the court is likely to consider whether that decision was reached reasonably and sensibly in the light of the prevailing conditions at the time.

In the event that face to face contact is suspended, both the President and Cafcass stress the need for alternative arrangements to be put in place to establish and maintain regular contact under the Stay at Home Rules eg. Facetime, Skype, Zoom, Whatsapp or telephone. Thought should also be given to how time might be made up after restrictions are lifted. Cafcass reminds parents that arrangements are always for the child’s benefit and should not be used as a source of tension or conflict, especially at a time when children are likely to be feeling anxious about the effects of the pandemic.

Parents should also exercise extra vigilance to ensure children cannot hear any discussions between adults about the court case or disputes over arrangements. This is particularly relevant with children at home and whilst court hearings are dealt with remotely.

The President concludes with this key message:

“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.”

John Myers 
Broadway House Chambers

26 March 2020

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