During the current Coronavirus Crisis some parents whose children are the subject of Child Arrangements Orders made by the Family Court have been understandably concerned about their ability to meet the requirements of these court orders safely in the wholly unforeseen circumstances that now apply. This short statement is intended to offer advice but, as the circumstances of each child and family will differ, any advice can only be in the most general form.
1 Parental responsibility for a child who is the subject of a Child Arrangements Order [‘CAO’] made by the Family Court rests with the child’s parents and not with the court.
2 The country is in the middle of a Public Health crisis on an unprecedented scale. 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. Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23rd March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales [‘PHE/PHW’].
3 The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
4 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.
More generally, the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. 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.
5 Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
6 Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW 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.
7 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.
The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.
The Rt. Hon. Sir Andrew McFarlane
President of the Family Division and Head of Family Justice
24th March 2020
The following websites and other resources may be of assistance to parents in the present crisis:
If you are in the process of separating or getting divorced and you have children, you will need to settle the arrangements for their future. Many parents manage this amicably; others need assistance from mediators or solicitors.
Sadly, there are also circumstances in which the assistance of the Courts is required, either to protect children from harm or resolve disputes about their future. Either way, it is important for you to understand the legal framework.
Our experienced and understanding family solicitors can help support you through the process of negotiation and, where necessary, apply to the Court for Child Arrangements Orders and other Court orders, and ensure these orders work as intended. A number of the solicitors in our team have been appointed to the Law Society Children Panel or are Resolution Accredited as specialists in the law relating to children.
We are able to help you with the following applications under the Children Act 1989:
Parental responsibility is shared jointly between all married parents, even after a divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility for each child either by:
Parental Responsibility means all the rights, duties, powers and responsibilities and authority which by law a parent has in relation to a child and his/her property. Each parent with parental responsibility retains the power to act independently of the other parent (subject to any order made by the court). Non-parents can in certain circumstances acquire parental responsibility for a child.
There are three main orders that the Court can make to resolve disputes about children:
1. Child Arrangements Orders
This is an order which will set out arrangements relating to:
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any other person including telephone and letter contact.
Contact may however in some circumstances be limited or supervised, and it is possible in extreme cases for the Court to order that a parent should not see a child at all.
2. Prohibited Steps Orders
Limit when certain parental rights and duties can be exercised for example, preventing a parent in meeting his/her parental responsibility for a child. Once a Prohibited Steps Order is made that parent is prevented from taking that step without the consent of the Court. It can for example be used to prevent a child from being removed from their school, or England and Wales, or from the care and control of a parent/carer. A Prohibited Steps Order can be made against anyone.
3. Specific Issue Orders
Contain directions to resolve a particular issue in dispute in connection with a child. A specific issue order could be obtained where there is a dispute as to the child’s education, determining whether the child can be taken abroad temporarily or permanently, and medical treatment. Specific Issue Orders may be made in conjunction with Child Arrangements Orders or on their own.
The principles the Court will use when deciding cases concerning children:
When making any decision, the court’s paramount consideration is the welfare of the child.
The court will always give the following three principles the highest priority:
The court will also have regard to:
The court fee to issue an application is £215.
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