We have had a number of parents contact us because their children are subject to Child Arrangements Orders made by the Family Court. They have understandably been concerned about balancing the health and safety of their children and themselves with abiding by any Court Order.
Whilst every case must be looked at individually, because the circumstances for every family and every child will be different, some guidance has been received from the President of the Family Division.
We are in the middle of an unprecedented long term crisis and parents who are caring for children must take account of everyone’s safety when making decisions about arrangements for their child.
On 23rd March the Government issued Rules that principally stated that people should stay at home and not leave home, other than for a medical need, essential shopping, daily exercise, or essential work (if it is not possible to do that work from home).
However, there was some Government guidance issued alongside the rules which states “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes”.
This in effect adds a further exemption to the stay at home rule. The guidance issued does not mean that children must be moved between homes. The decision as to whether a child is to move between parental homes, is for the parents to make, taking account of all relevant circumstances, for example the child’s own health, whether there are any vulnerable individuals in one of the households, the risk of infection etc. and taking account of these factors, a sensible and practical solution should be found by the parents where possible.
The guidance also states that if both parents are in agreement to temporarily vary the arrangements in the Child Arrangements Order, that they are free to do so, but that it would be sensible for each parent to record such agreed changes, perhaps in a text message or email to each other so that the position is clear.
The difficulty comes when parents can’t agree on how to vary the arrangements set out in the Child Arrangements Order. The guidance states that if one parent is sufficiently concerned about complying with the Child Arrangements Order, and that to do so would be against the current health advice, then that parent may exercise parental responsibility and vary the arrangements. If those actions are questioned by the other parent, when the matter is considered again by the Family Court, they are likely to look at whether each parent acted reasonably and sensibly, in light of the official advice and rules in place at that time of taking that decision, together with any specific factors relevant to the child or the family.
It has also been made clear that if time with the other parent is not taking place, that the Courts will expect alternative arrangements to be made to establish and maintain contact within the scope of the Government Rules, for example using Facetime or similar where possible, if not telephone calls.
The key message coming out of the guidance is that if the current rules and advice cause the letter of the law to be varied, the spirit of the Order should still apply and safe alternative arrangements made where possible.