This has been an area of real concern for many parents whose children are the subject of Child Arrangements Orders, which set out when a child spends time with each of their parents.
The Family courts have issued guidance stating that where parents do not live in the same household, children under 18 can move between their parents’ homes. However, the guidance is clear that this does not 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, taking into account factors such as the child’s health, the risk of infection and whether there are other vulnerable individuals in either household.
On one level, the guidance seems to rightly promote a common-sense approach: parents should be the people best-placed to decide what is in a child’s best interests taking into account all the relevant safety considerations and they should come to a sensible agreement about what is best to do in the current circumstances.
The difficulty arises where parents disagree. This is also dealt with in the guidance, which states that where one parent is sufficiently concerned that complying with arrangements would be against current health advice, then that parent may unilaterally vary the arrangement to one that they consider to be safe.
In usual circumstances, if one parent wished to vary the terms of an existing order, and the other parent did not agree, they would need to apply to the Court to do so. In current circumstances, if the terms of an order are not followed by one parent, the other parent can still apply to the Court to enforce that order. However, that application may not succeed if the court considers that the parent has acted reasonably and has not complied with the order for good reason.
The guidance principally calls on parents to co-parent sensibly and reasonably in the current times – and doubtless, effective co-parenting has never been more vital. But it has also been the cause of much anxiety for those who anticipate the current crisis being used by the other party as a reason to frustrate contact with their children.
Doubtless, there will be some clear-cut cases where one party has acted in an obviously unjustified manner – and it is likely that the Court will look very unfavourably upon that. But as individuals, we all perceive risk differently and there will also be cases where it is difficult for the Court to fairly challenge a parent’s choice to vary the arrangements where it is stated that this was done out of genuine concern for the safety of the child or wider family.
In the weeks and months to come we will no doubt gain a clearer understanding of the spectrum of children matters that will be brought before the Family Courts in the wake of coronavirus and the approach that the Court adopts in relation to those cases. In the meantime, however, the key message must be that, where arrangements in relation to a child have to be temporarily changed, the spirit of the order should be observed. Alternative arrangements must therefore be put in place in order to maintain regular contact by other means, for example via WhatsApp, Face-Time, Skype, Zoom etc.
If you require further information about anything covered in this briefing, please contact Jessica Gibson, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2020