How Does Coronavirus Affect Child Arrangements?

There is a lot of confusion as to how the coronavirus affects separated parents in dealing with child arrangements. This is a very difficult time and I have seen many posts online asking whether parents have to adhere to a child arrangements order and the effect non-compliance of an order will have.

The common questions you see online are whether or not the court order has to be followed? If so, how can a child arrangements order be followed with the government guidelines? There are also concerned parents who have contact arrangements but they have stopped and they want to know how they can see their children during the coronavirus crisis.

This situation is unknown and unexpected. So, it is obvious that there will be a lot of confusion and unprecedented difficulties in maintaining child arrangements. It is also fair to say many parents are very concerned to ensure child arrangements continue. Sadly, it is also possible that in some cases individuals could use this as a basis to prevent child arrangements and risk harm to the children. Although, on the other hand, there are situations where for the children’s welfare a parent is forced to change child arrangements. There are fair arguments for both situations and each case will need to be considered on its own facts.

How to deal with Child Arrangments Dispute During Coronavirus?

  • The starting point is the s.1 Children Act 1989. This confirms that when the court determines any question with respect to a child’s upbringing or the administration of their property or any income arising from it – the child’s welfare is of paramount consideration. This is the main point that all good legal representatives and the court will have in mind when dealing with your case.

  • This is a major public health crisis that has caused thousands of deaths. This is not something that any parent is personally responsible for and therefore the circumstances to an extent are out of their control. It is paramount to ensure the children’s safety, health and wellbeing. This should be a point that both parents can agree upon. Therefore, it is very important that the parents act sensibly and safely when making decisions about where and with whom the children spend time.

  • Remember, parental responsibility for the children is held by you – the parents. It is not the court that has parental responsibility. Therefore, you must act in a manner that ensures the children’s welfare.

  • It is important that parents abide by the government guidelines (including the stay at home and away from other guidance). This should always be considered alongside the precautionary advice provided in staying home and avoiding the spread of coronavirus.

  • The stay at home rules (with some referring to them as ‘lockdown’) clearly state that it is no longer permitted for you (including children) to be outside of your home for any reason other than daily exercise, essential shopping, medical need or attending essential work.

  • However, government guidance does have an exception to this mandatory ‘stay at home’ rule. This confirms that “…where parents do not live in the same household, children under 18 can be moved between their parents’ homes…”.  What does this mean? Well, it does not mean children must be moved between homes. This would be a risky process and each case will depend on its own facts. It is for the parents to make a sensible assessment of the circumstances. This means considering things such as the up to date government guidance, the children’s present health, the risk of infection and the presence of other vulnerable individuals at either parent’s home. It would not be a worthwhile exercise to risk the children’s health or risk vulnerable people they may come into contact with.

  • It is very important for the parents to have open lines of communication during this time. Whether this is possible, will depend on your circumstances and you are not at risk (i.e. domestic abuse/breach of injunctions etc). Remember, you may not see the risk to the children but the other parent may do so. This is a time of genuine fear and concern. Therefore, children’s welfare should be the primary concern.

  • It is possible for parents to temporarily agree on changes to child arrangements orders during this time period. It would be best to have this confirmed in writing (text, email or note). 

  • If you cannot agree and you are a parent who is sufficiently concerned that complying with the child arrangements order would go against the current government and health advice then you can exercise your parental responsibility and vary the child arrangements to those that will be safe for the children. However, remember, after the crisis, the court will consider if you acted reasonably and sensibly with respect to the government advice and guidelines. This would mean that you should be prepared to explain your reasons and concerns that led to you varying the child arrangements.

  • Importantly, if the child arrangements are changed (whether by agreement or not) you should ensure efforts are made for alternative arrangements. The court will expect this and you should have this in your mind to ensure the children are not harmed by the loss of the other parent from their lives and normal routine. With the ‘stay at home rules,’ you can offer indirect contact through Facetime, Watsapp, Skype etc. If this is not possible then telephone contact should be increased to make up for the face-to-face contact.

This situation is out of the ordinary and during this time it is impossible for the government to provide hard and fast rules. This is because each case relies on its own facts and that’s why parents with parental responsibility are required to sensibly deal with the matters and ensure child arrangements are maintained so far as possible.

This does not mean risking the children’s welfare or intentionally obstructing contact.  The court have stated this best by saying that the coronavirus restrictions have caused the letter of a court order to be varied but the spirit of the order should nevertheless be maintained by making safe alternative arrangements.

 

“….We are cleary in unprecedented times. It is now the time for parents to set aside any personal issues (where possible) and try to communicate effectively with the main focus being on the children’s welfare. This includes ensuring their safety, welfare, and wellbeing. However, it also includes ensuring that child arrangements are maintained so far as possible – even if that means by way of extensive indirect contact. The government guidance and measures are having at a fast pace and upon the coronavirus crisis being controlled the matters can return. During this difficult time, I wish all the very best in health…”

Azhar Hussain (Solicitor-Advocate) – Azhar Hussain Family Law Blog