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Advice for separated families on moving children between homes during the Covid crisis

The Stay at Home Rules published by the UK government on 23 March 2020 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.

Government guidance issued alongside the Stay at Home Rules 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.”

On 24 March, the President of the Family Division, Sir Andrew McFarlane, provided additional advice on compliance with Family Court Child Arrangement Orders. This records the establishment of an exception to the mandatory ‘stay at home’ requirement; it makes clear that 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.

Parents are expected to communicate with each other and reach an agreed and practical solution. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in an existing Child Arrangements Order 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.

Where parents do not agree to vary the arrangements set out in an existing Child Arrangements Order but one parent is sufficiently concerned that complying with the Order would be against current Public Health England 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 an existing Child Arrangements Order 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.

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