By Susan Alexander, Consultant Solicitor, Family and Mediation
If parents are living apart, how is co-parenting possible when the government has declared a lockdown, instructed us all to stay at home and avoid face to face contact with anyone other than those you normally live with?
It is a real conundrum, but fortunately we do have access to fantastic technology to allow children to continue to spend time with both parents, even if
not face to face. It's important to consider the emotional and physical well-being of your children. Of course, it's heartrending if you can't hug
them and be close, but you can still get involved by Skype, Zoom, FaceTime, What's App and even watch TV together or help them with their homework.
Remember this is only temporary – this too will pass and there will be plenty of opportunities to get together once the COVID 19 crisis is under control. In the meantime, we all need to exercise restraint, tolerance and be prepared to sacrifice our normal routines for the greater good and keep everyone healthy.
If you are faced with co-parenting issues in light of the Coronavirus pandemic or would like any further information about our Family Law services, please
contact a member of the Family Law team on 01244 356 789 or email firstname.lastname@example.org.
Please be assured we are still open for business, our team are working from home supporting, helping and advising our clients. We are happy to receive
new enquiries and happy to arrange consultations remotely.
Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.
The Lord President of the Family Division (the head family judge in England and Wales) has published guidance which should be followed. For your reference, his guidance is set out below:
Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders
During the current Coronavirus Crisis some parents whose children are the subject of Child Arrangements Orders made by the Family Court have been understandably
concerned about their ability to meet the requirements of these court orders safely in the wholly unforeseen circumstances that now apply. This short
statement is intended to offer advice but, as the circumstances of each child and family will differ, any advice can only be in the most general form.
- Parental responsibility for a child who is the subject of a Child Arrangements Order [‘CAO’] made by the Family Court rests with the child’s parents
and not with the court.
- The country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting
sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.
Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23rd March [‘the Stay at Home Rules’]. In
addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and
Public Health Wales [‘PHE/PHW’].
- The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside
their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
- Government guidance issued alongside the Stay at Home Rules on 23rd March deals specifically with child contact arrangements. It says:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
This establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make 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.
More generally, the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. 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 worried about this.
- Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily
varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
- Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements
would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they
consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family
Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at
Home Rules in place at that time, together with any specific evidence relating to the child or family.
- Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time
with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact
between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other
video connection or, if that is not possible, by telephone.
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 Rt. Hon. Sir Andrew McFarlane
President of the Family Division and Head of Family Justice
24th March 2020
The following websites and other resources may be of assistance to parents in the present crisis:
For information on supported contact centres
A new service from National Family Mediation
Advice and tips for keeping relationships healthy during self-isolation and social distancing.
Cafcass has also published a useful guidance sheet which can be downloaded by clicking the link below