On 23rd March 2020, and in response to the COVID-19 pandemic, the Prime Minister confined the country to isolation. The message was clear, no one was permitted to leave their homes except to carry out essential shopping, daily exercise or to attend work. In these truly exceptional times, the question for many separated families has become, what impact does this government guidance have on existing contact arrangements? Lisa Evans takes a look…
The government restrictions in response to COVID-19 do not necessarily mean that contact arrangements between children and their parents should fall away. These arrangements, whether informally agreed or set out in a Child Arrangements Order (CAO), remain in place and should continue to be followed, provided that it is safe to do so and in line with government health advice.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 confirmed that children of separated families are an exception to the stay at home rules and that children can move between their respective parents’ homes, ‘… to continue existing contact arrangements for access to, and contact between, parents and children…’.
On 24th March 2020, the President of the Family Division, Sir Andrew McFarlane published guidance dealing specifically with the position of separated families during the current climate of self-isolation and social distancing. The guidance is clear that whilst children of separated parents are an exception to the mandatory stay at home rules, ‘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’.
The guidance goes on to emphasise the importance of communication and the parents’ ability to agree temporary variations to the terms of any CAO. It is recommended that any such variation is recorded in writing, either on paper or in an email or text.
Importantly, the President states that a parent may unilaterally vary the terms of a CAO provided that they are sufficiently concerned that compliance with the order would be against government health advice. The guidance is clear however that ‘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.’
In the event that direct contact cannot be maintained safely, alternative arrangements should be made to ensure that contact can be maintained between children and their parents. This includes the use of technology to facilitate video calls, or if that is not possible, by telephone.
Ultimately, the key message of the guidance is that where the current public health crisis, ‘cause[s] 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’.
If parents are unable to agree alternative arrangements, or if irreconcilable disputes remain, an application can be made for a CAO, or to vary or enforce an existing CAO.
Lisa Evans is a pupil in the Family Department at 18 St John Street Chambers. She is in her second six months of pupillage and is available to accept instructions. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.