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During the current Coronavirus (COVID-19) pandemic, some separated parents whose children are the subject of Child Arrangements Orders made by the Family Court have understandably been concerned about the way to deal with these court orders safely. In most cases, neither the parents nor the courts could have expected this unprecedented situation to arise when the order was made.
The most senior family law judge in the country has issued guidance which, we hope, those affected may find useful.
Essential overriding objective
As always, when the law applies to children involved in family issues, it is the best interests of the children which are paramount.
Accordingly, when parents are faced with an apparent dilemma, they are urged to consider the intention behind the making of the original court order.
If the order provided for the children to spend time with each parent, that intention should be maintained, unless, because of the pandemic, there is a justifiable reason to alter the arrangements.
How to secure the best interests of children
- The expectation is that parents will care for their children by acting sensibly and safely when making decisions regarding the arrangements for them, including deciding where and with whom they spend time.
- Parents must abide by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which came into force on 26 March.
- Under the Regulations, no person may leave the place where they are living without reasonable excuse. Thirteen examples of reasonable excuse are listed and others could, of course, exist. Most of the publicity and reporting has focused on just four of those examples, but the Regulations are less restrictive than has generally been advertised.
- One of those examples is expressly “to continue existing arrangements for access to, and contact between, parents and children”. The term “parent” is to be taken to include anyone who, while not a parent of the child, has parental responsibility for, or the care of, that child.
- This does not mean that children must be moved between homes, but the Family Courts would expect their orders to be abided by, and for any decisions to depart temporarily from an order to be made responsibly, after a sensible assessment of the circumstances. This should include the importance of maintaining a relationship with both parents, but also the child’s present health, the actual risk of infection, and the presence of any vulnerable individuals in one of the households.
Parents advised to communicate about arrangements
- The best way to deal with these difficult times is for parents to communicate with one another about their worries, and what they think would be a good, practical solution.
- There should be respect and attempts to understand and resolve differing points of view.
Many parents are very worried about Coronavirus and their own health and that of their children and their extended family. Others take a more relaxed approach. 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 concerned about this.
Alternative arrangements
- Agreement between parents
Where parents, by genuine agreement between them, exercise their parental responsibility temporarily to alter the arrangements set out in a Child Arrangements Order, they are free to do so. They could, for example, agree that although visits are difficult, increased calls could take place using the range of technologies available: Facetime, Skype, Zoom etc.
It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other. There is no need to inform the court.
- No agreement between parents
Where parents do not agree to vary the arrangements set out in a Child Arrangements Order, but one parent is sufficiently concerned that complying with the arrangements would be against current Government health advice, then that parent may exercise their parental responsibility and temporarily vary the arrangement to one that they consider to be safe.
However, as with any dispute between parents in more normal times, it may need to be referred to the court for clarity. It would be a good idea to do so if the proposed variation is for more than just a short period of self-isolation due to Coronavirus (COVID-19) symptoms, for instance. The Family courts are still functioning. Applications can be submitted by email and hearings are conducted for the most part by telephone or by video link.
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