Could COVID-19 / Coronavirus measures make Child Arrangements more complicated? BLM explains

COVID-19 / Coronavirus and Child Arrangements

The Prime Minister’s lockdown announcement on Monday evening sent shockwaves across the nation but for separated families the news was even more unsettling. Many pondered whether his very strict reasons for leaving the house meant that children could no longer spend time with both parents in separated families? The initial concern amongst parents, of course, was that it did and it was only with further clarification from Michael Gove in relation to this point specifically that minds were put at rest.

Sir Andrew McFarlane, President of the Family Division on COVID-19 / Coronavirus

These are unprecedented times however, and to assist further, Sir Andrew McFarlane, the President of the Family Division, issued further guidance on the compliance of family court child arrangement orders during the pandemic.

It was noted that this is generic advice as it is accepted that each family is different. It is expected that parents will care for children by acting “sensibly and safely” when making decisions regarding their children.

What do the Government's 'Stay at home rules' say?

The “stay at home rules” state that it is no longer permitted for any person, including children, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work and further clarification added the exception that “where children do not live in the same household, children under 18 can be moved between homes.” However, Sir Andrew McFarlane further clarifies that this exception does not mean that children “must” be moved between homes. This needs to be decided between the parents.

He goes on to give practical and pragmatic advice as to how this is best achieved and one would of course hope that in times of a public health crisis that parents, even those who struggle to communicate generally, are able to come together to work out the best solution for their children.

If parents are in agreement then any child arrangement order can be temporarily varied by consent between the parents but if they don’t agree, what is the position?

What's the position on child arrangement orders where parents disagree? How are the Government's 'stay at home' measures impacting?

As pointed out in the guidance, even if one parent thinks that it is safe for contact to go ahead, it might be entirely reasonable for the other parent to be genuinely worried. In those cases if that parent is “sufficiently concerned” that complying with the child arrangement orders would be against Public Health England or /Public Health Wales advice then they may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If the aggrieved parent seeks to challenge this decision in the Family Court, the approach that will be taken will be to consider whether the parent acted “reasonably and sensibly” in light with the official advice and rules. The court will however expect that alternative arrangements are made to maintain regular contact, such as face-time apps or telephone calls, to ensure that the spirit of the law is delivered even if the order cannot be adhered to in its entirety.

This could give rise to issues, particularly with high conflict separations, where contact may not necessarily be supported by both parents. Speak to BLM’s family team if these are issues you are facing.

 

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

 

 

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Grainne
Fahy

Partner , London

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