What is the impact of COVID-19 on Child Arrangement Orders?

At 8:30pm on 23 March 2020, Boris Johnson announced a strict lockdown on the UK advising everyone to “Stay at Home”. Practicing social distancing and self-isolation is now vital to slow the spread of COVID-19.

It goes without saying that the national announcement has left parents unsure and anxious as to where they stand in terms of co-parenting and compliance with Child Arrangement Orders (“CAOs”).

There is no straight forward answer to be given during such unprecedented times, however, the Government’s guidance, is that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. Although the Government has addressed child contact arrangements, the interpretation of such guidance is very subjective which raises potential conflicts between parents in terms of applying the exception to the ‘Stay at Home’ rule.

Since the Government’s announcement, the Head of Family Justice, Sir Andrew McFarlane, has published further advice to assist parents in their understanding of the rule and its impact on CAOs:

“The decision whether a child is to move between parental homes is for the child’s parents tomake 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.”

Communication is key. Parents need to understand each others positions and express their concerns. This means having sensible discussions to agree the best approach moving forward, in terms of caring for and having contact with the child.

Is your CAO still effective?

The Court’s primary concern is safeguarding and promoting the welfare of children. If you have a CAO in place, stipulating who the child will spend time with and where the child will live, the Order, in principle, will remain effective during this public health emergency.

However, where parents with parental responsibility are in agreement that the arrangements set out in the CAO should be temporarily varied, Sir Andrew McFarlane has confirmed that they are free to do so. It would be advisable for any agreed variation to the CAO to be recorded by way of email, text or written note, to avoid any future dispute.

If parents are unable to agree a way forward, but one parent believes that complying with the terms of the CAO would be in breach of Government guidance and advice, the guidance suggests that a parent has the ability to exercise his or her individual discretion and vary the contact arrangement. This is only acceptable if it is for the purpose of keeping the child “safe”. We are aware that this is leading to conflict amongst a number of separated families given that parents often have differing views about what is safe.

If, following this, the decision of the parent acting on their own is challenged by the other parent in the Family Court, it will be a question for the Judge to determine if a parent was acting reasonably and sensibly in light of Government guidance, together with evidence relating to the individual child and/or family.

Given that the Court has made it clear that it will take a dim view of parents suspending contact arrangements without reasonable excuse, any unilateral decision to suspend contact should be very carefully considered by both parents as well as all options for contact continuing to take place in alternative ways.

We have provided some examples of when it might be reasonable to suspend contact albeit that this is very much dependant on the circumstances of each individual family:

1. Where a parent or child has particularly complex health issues and is at significant greater risk if they contract COVID-19;
2. Where all contact must be supervised and there are no supervisors available (although consideration should be given as to whether there is an alternative to supervised contact); and
3. Where one parent or members of their household are not able to stay at home or practice social distancing.

This is a worrying time for all parents. It is important to approach the current situation rationally and agree creative solutions to short term problems. CAFCASS has put together an advice document to encourage effective co-parenting during the pandemic which can be found here.

How can Ellis Jones help?

If you require any further advice in relation to the above or if you are unable to agree safe alternative contact arrangements for your child, please do not hesitate to get in contact with one of our expert Family Law Solicitors on 01202 636223 or by email to family@ellisjones.co.uk.