03 Apr Separated parents – Child Arrangements Order – Covid-19 should the court order be followed
In these difficult times, the following explains what should happen with the arrangements for children when there is a Child Arrangements Order in place which provides for the children to see both parents, either living with one parent and seeing the other parent for contact or where care is shared e.g. with the children living with one parent for part of the week and the other parent for the remainder of the week.
Guidance has been issued by the President of the Family Division, who is the head of our family courts https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/
Guidance has also been issued by Cafcass. Cafcass is an important organisation, whose role is to provide the court with guidance about what is in a child’s best interests, when the court is asked to deal with a dispute over child arrangements by parents https://www.cafcass.gov.uk/download/12285/
Please be aware we are in unchartered waters, as there has not been a time like this in history when our courts have had to grapple with such issues. The guidance may change as time moves on, so it is important to bear this in mind.
Movement of children between homes
The movement of children under 18 between their parents’ homes, where their parents are separated is permitted under the Convid-19 restrictions. The guidance from the President states:
“Government guidance issued alongside the Stay at Home Rules on 23rd March deals specifically with child contact arrangements. It says:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
This establishes an exception to the mandatory ‘stay at home’ requirement; 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.”
If you agree with the other parent to change the arrangements in the court order, then record this in writing e.g. an email or WhatsApp/text message and keep it. If the change was based on guidance at the time, due to the fact guidance is frequently changing, sometimes daily keep a copy of the guidance at the time the change was made.
Disagreement about the arrangements
Please be mindful that as the children are likely to be with either you or the other parent, at home, that if you are discussing the arrangements with the other parent that you do so away from the children, and that there is not the risk that they may overhear the discussions. It is important the children are not exposed to any dispute between you and their other parent, as it is not in any child’s best interests to know of disagreement as this will leave the child feeling anxious or feeling they have to take sides and that is not appropriate. Children need to know that you are both there for them and they need to have a clear understanding from both of you about the arrangements. How you deal with resolving problems with their other parent will impact on your children and their emotional well-being, their ability to resolve problems themselves and their future relationships with people.
It is important that arrangements are agreed by both parents. It is good for children to know that in difficult times you can both work together for their sake.
If you cannot reach an agreement, then you could consider approaching a family mediation service. Some are offering mediation by videoconferencing and they may be able to work with you and the other parent so you are able to reach an agreement. You can contact a family solicitor to discuss the issues and your concerns and they may be able to help you and if needed, they can communicate with the other parent on your behalf to try to resolve matters, if communication has broken down between you and the other parent.
Applications can still be made to court to ask a judge for a decision about a variation to an existing order or to try to enforce an existing order or to obtain a child arrangements order. However, the courts are busy, they are having to deal with old applications by telephone and video link, slowing down the work they can get through. Also, the courts are having to priortise the work they do and so there is likely to be a long delay before a judge will be able to make a decision. The courts will be prioritising cases where children are at risk of serious harm above cases simply involving two parents who cannot agree child arrangements. It is therefore important that you both as parents try to agree matters between you, if possible. Also, prior to being able to make an application to court, the court will normally need to know you have tried to resolve matters by mediation otherwise, they may not process your application.
The Guidance from the President where parents do not agree is:
“Where parents do not agree to vary the arrangements set out in a child arrangements order [CAO], but one parent is sufficiently concerned that complying with the child arrangements order arrangements would be against current [Public Health Advice], then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. 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.
Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.
It is therefore important that if there is a move away from the arrangements, the change is reasonable and sensible in light of the Government Advice to stay at home. Otherwise, there may be criticism by the court when the restrictions are lifted of the parent who decided to change the arrangements. Also, it is clear, if arrangements are altered and face to face contact is suspended or amended, then alternative arrangements are expected to take place so think about what alternative arrangements can be put in place.
Need advice contact us
If you need advice about a Child Arrangements Order or seeing your children where this is no order in place, please contact me, Genette Gale, Family Solicitor and Collaborative Lawyer on 01747 857303 and I will call you back, or alternatively email me firstname.lastname@example.org
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