The Prime Minister’s lockdown announcement in March 2020 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.
There is no doubt that we have come a long way since March 2020. However, having emerged from a second lockdown in November, having been placed in a tiered system at the end of 2020 and having recently been plunged into a third national lockdown on the 5 January 2021, separated families are understandably struggling with child arrangements. At a time like this, with schools closed and parents largely working from home, family lawyers may find it useful to to refresh themselves on the Government’s guidance.
Can children move between the homes of separated parents?
The President of the Family Division, Sir Andrew McFarlane, issued guidance about child arrangements during the Coronavirus outbreak back in March 2020.
The President stated that 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. He went on to crucially state, ‘‘where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This exception does not, however, mean that children must be moved between homes. The decision 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.
Can children move between the homes of separated parents when the parents live in different tiers?
Yes. The Government’s Briefing Paper dated the 21 December 2020 confirms that children can move between the homes of separated parents and this includes moving between tiers for the same purpose.
What’s the position where a child arrangements order is in place and where parents disagree?
The President’s guidance stands. Parents are free to agree that the terms of the child arrangements order should be temporarily varied. However, if parents cannot agree but one parent is ‘‘sufficiently concerned’’ that complying with the an order would be against current Public Health England and Public Health Wales advice, then that parent may exercise their parental responsibility and vary the order to one that they consider to be safe.
If, after the event, an aggrieved parent seeks to challenge this decision in the Family Court, a judge is likely to look to see whether each parent acted reasonably and sensibly in the light of the advice and rules in place at that time, together with any specific evidence relating to the child or family.
Where a child arrangements order is temporarily varied, meaning that a child does not get to spend time with the other parent as set out in the order, should alternate arrangements be made?
A Judge will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent, for example remotely by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.
The President’s guidance is that the “key message” where Coronavirus restrictions cause the “letter” of a court order to be varied is that the “spirit” of the order should nevertheless be adhered to by making safe alternative arrangements for the child to have contact with the other parent.
What impact will a child self-isolating have on a child arrangements order?
If an adult is notified that their child has had close contact with somebody who has tested positive for Coronavirus, the adult must ‘‘secure as far as reasonably practicable, that the child self-isolates’’ for ten days. There are a list of reasons that permit a child from leaving their home. Unfortunately, visiting a parent whom a child is not living with at the time they are notified of the requirement to self-isolate is not specially listed.
In response to this grey area, the Government’s Briefing Paper suggests that if there is a child arrangements order in place, individuals may wish to seek specialist advice. If the matter came to the Family Court, a judge is, as above, likely to look to see whether each parent acted reasonably and sensibly.
Interestingly, if a child is required to self-isolate having returned from a non-exempt country, the guidance from the Department for Health and Social Care is that individuals may only change their accommodation in a limited range of circumstances, including where “a legal obligation requires you to change address, such as where you are a child whose parents live separately, and you need to move between homes as part of a shared custody agreement.”
Coronavirus and the subsequent lockdowns has make child arrangements more complicated
In answer to the question posed at the start of this article, yes, Coronavirus and the subsequent lockdowns have made child arrangements more complicated. That said, and as the virus develops and the seriousness of it becomes more apparent, many parents are becoming far more practical and are doing their best to act in their child’s best interests.
As the President stated back in March 2020, parents should communicate with one another about their worries, and what they think would be a good, practical solution. 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.
What help is out there for separated parents?
If a parent is worried about child arrangements and if they cannot afford and are not entitled to legal aid, family lawyers should consider directing them to the following charities and groups which provide advice on family law:
- Gingerbread, a single parent’s charity: 0808 802 0925;
- Child Law Advice Service, providing an email service on education and family law;
- Cafcass, provides advice on co-parenting and child arrangements in relation to the Family Courts: 0300 456 4000;
- Family Rights Group (England & Wales) for parents who have a social worker involved in their child’s life or require support for children’s services: 0808 801 0366;
- National Association of Child Contact Centres, provides advice to parents around child contact arrangements on 0845 4500 280 or via email@example.com;
Families Need Fathers, a charity offering support to both parents, on 0300 0300 363