COVID-19: Child Arrangements

Routines

• Where parents do not live in the same household, children under 18 can be moved between parents' homes. This is an exception to the mandatory stay at home requirements, but it does not mean that children must be moved. The decision to move any child is a decision for the parents to make after a sensible assessment of the circumstances, including the child's present health, the risk of infection and the presence of a vulnerable person in one household or another.
• Where a child does not get to spend time with a parent as scheduled, the courts will expect regular contact to be maintained via remote methods.

Court Orders

• Orders should be complied with unless they conflict with Government advice. An order can be temporarily varied by the parents' joint agreement. It is sensible for parents to record such agreement in a note, email or text sent to one another.
• A non-key worker parent may want to look after the children if a key worker parent is continuing to go to work, to reduce any risk of the children becoming ill. Any variation to current arrangements should be agreed, in writing if possible.
• The key message from the courts is that where the letter of a court order must be varied due to COVID-19 restrictions, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.
• If parents cannot agree to vary the arrangements set out in the order, but a parent is sufficiently concerned that compliance would be against current PHE/PHW advice, the judiciary has said that that parent may exercise their parental responsibility and vary the arrangement to one they consider safe. However this is not usually permitted – the judiciary have never before issued such guidance and have only done so now in response to the highly unusual and difficult circumstances of this outbreak. The guidance added the warning that "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".
• If parents cannot agree on alternative arrangements, then an application to vary the existing order can be made – the Courts remain open and most hearings are being conducted by telephone or video conference. Arbitration also remains a possibility and may be quicker; it too can be conducted via telephone or video conference. Parents should be careful to ensure that children are in a different room so that they don't overhear any sensitive conversations.
• Parents wanting to continue with the current arrangements in the order can apply for enforcement, if necessary.
• Usually orders detail different arrangements for term time compared to school holidays. It is virtually certain that they will not provide for the kind of unprecedented circumstances seen at present. Although most children are no longer at school, parents cannot demand more contact hours on the basis that the children are now in 'holiday time'.
• If orders provide for handovers in public places, such as schools or child contact centres, alternative arrangements will need to be made. Usually the parents' homes should be used (maintaining safe distances as required by social distancing), but this may be problematic if there are issues with domestic violence.

Travel

• Government guidance suggests that all holidays, both within and outside of the UK, should be cancelled. Planning now to rearrange this lost time will provide comfort to the relevant parent, reassuring them that they can "make up" for missed contact.
• To the extent any foreign travel is permissible and possible during the outbreak, some parents may want to remove children to a different jurisdiction, particularly one less affected by COVID-19. However, this should not be done without the consent of the other parent. Consent is unlikely to be given if a parent is concerned that further lockdown provisions will result in their children being trapped in another jurisdiction, potentially for months.
• If children do move, and settle in a new jurisdiction, this may lead to problems for the courts when deciding where the children ultimately live, especially if they have been away for a significant period of time, which is not unlikely in the current climate. If children have stayed away from the UK for more than a year, it may no longer be possible to oblige the parent who has taken them to bring them back to the UK under the international Hague Convention treaty on child abduction and unlawful retention. This is a complex area and specialist advice should be sought ideally before any foreign travel.

Court Hearings

• Hearings may continue online or via telephone. Parents should be careful to ensure that children are in a different room so that they don’t overhear any sensitive conversations.
• CAFCASS is planning to continue conducting interviews via Skype.

Other ways of resolving issues

• There are other flexible ways of resolving issues involving children. Mediation and arbitration can be organised quickly and successfully completed remotely.

Read more

https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/

https://www.gov.uk/government/publications/coronavirus-covid-19-early-years-and-childcare-closures/coronavirus-covid-19-early-years-and-childcare-closures

For more information on this topic please contact Sarah Higgins at sarah.higgins@crsblaw.com or call +44 (0)20 7203 5130.