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CAOs and Coronavirus

Posted: 31 March 2020

Child Arrangements – Should we distance ourselves from a Court Order?

As a result of the Coronavirus Pandemic many parents are faced with the difficult decision of children spending time with their non-resident parent. A regular agreement may be the norm, or your arrangements may be set out in a Child Arrangements Order. Whatever your circumstances, it can be hard to know whether or not to send your child to another home when we are all meant to be distancing ourselves from each other.

The President of the Family Division, The Rt. Hon. Sir Andrew MacFarlane, has set out some guidance for parents who are considering whether or not to continue with their regular arrangements under a Child Arrangements Order, in light of the advice from the government to remain in our homes.

Parental Responsibility, of course, rests with a child’s parents and not with the Court, even if there is a Child Arrangements Order in place. There is an expectation that all parents will act sensibly and safely when considering whether or not to allow a child to spend time in another home, and continue to follow the rules on social distancing which include:

• Shopping for basic necessities as infrequently as possible;
• One form of exercise a day alone or with members of your household;
• Any medical need or to provide care or help to a vulnerable person; and
• Travelling for work purposes, but only where you cannot work from home.

The rules suggest that it is no longer permitted for a person, including a child, to be outside their home for any purpose other than those listed. However, there is specific exception on child contact arrangements which is not widely known or publicised, which is:

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

This does not mean that you have to move your child between homes. The advantages of sending your child for their regular contact arrangements provides some normality during an unusual time. It can provide the prospect of more social interaction and different activities which you may not have thought of. Parents are to make the decision themselves, after sensibly assessing the circumstances and thinking about things like the risk of infection or the presence of a vulnerable person in either household.

Ideally, parents should communicate to each other their concerns and what they think would be a good, practical solution. It is entirely reasonable for one parent to believe it is safe to promote contact, whilst the other is genuinely worried about the safety and wellbeing of the child or others.

If there is a Child Arrangements Order in place, parents are free to vary this by agreement. It would be sensible to record this in an email or text message to each other.

If you cannot agree what is for the best, and seek to challenge the decision of a parent in the Family Court at a later date then consideration will be given to whether each parent acted sensibly and reasonably in the light of the official advice and rules to remain in our homes, together with any specific evidence about a child or family.

The Courts also expect that if the decision is taken by one or both parents to vary a Child Arrangements Order so that a child cannot physically visit their other parent, then there will still be regular contact for the child by video calling, and if that is not possible then by telephone. The benefits of continuing to promote a child’s relationship with both parents in uncertain times can provide them with stability, and the knowledge that their well-being is still at the forefront of their parents’ minds.

The President confirms that:

“The key message should be that, 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”.

The circumstances of each family will differ. If you are not sure what to do and would like to speak to a solicitor about your options, then feel free to contact our family team on 01245 349696 or enquire through our website.

Sarah Courts
Accredited Children’s Solicitor
31 March 2020

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