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Covid-19 & compliance with Family Court Child Arrangement Orders

How to talk to your child about Covid19: “Provide facts about what has happened, explain what is going on now and give them clear information about how to reduce their risk of being infected by the disease in words that they can understand depending on their age”  – World Health Organisation, March 2020

In these uncertain times, maintaining a sense of routine will help your child to feel safe and secure. Whilst your child’s school may be closed, consider sticking to normal meal and bed times and any other family rituals your child takes comfort in – for example, movie night or reading a book together before bed.

  • Unless there are justified medical/self-isolation issues – or some future nationally issued guidance or expectation associated with leaving the house in your area – children should also maintain their usual routine of spending time with each of their parents. If there is a Child Arrangements Order in place this should be complied with unless to do so would put your child, or others at risk. This will help your child to feel a sense of consistency, whilst also reassuring them that the parent they don’t always live with is safe and healthy.
  • If you’re not able to maintain your child’s routine due to illness or self-isolation, or non-availability of people who ordinarily support your child’s contact, then communicate clearly and honestly with your co-parent. If it is not safe for you to communicate directly (for example, if there has been a history of domestic abuse) then consider using a trusted third party to help you.
  • Think creatively about how you can support your child to stay in touch with their other parent and family members during any period of self-isolation. Skype and Facetime can be great ways to catch up and can be used to read stories, sing and play together. With older children you could also consider a watch party – where you gather online to watch a movie or video, commenting and ‘reacting’ in real time.
  • If any court directed spending time arrangements are missed, think about how you and your co-parent may be able to ‘make up’ your child’s time after the restrictions are lifted. Remember, any rearranged spending time arrangements should always be for your child’s benefit and should not be used as a source of tension or conflict – especially at a time when your child is likely to be feeling anxious about the effects of the pandemic.
  • Be extra vigilant when making sure that children cannot hear discussions about the court case or any dispute you may have with your child’s other parent. This is particularly relevant now as they are at home and there may be court hearings by Skype / teleconference. Exposing children to these disputes can result in them feeling confused, having divided loyalties and may harm them emotionally.
  • If your household is not in self-isolation, then it is still recommended that you and your child maintain sensible social distancing from members of the public. This means avoiding social activities such as going to restaurants, theatres and cinemas – and only using public transport if you really have to.
  • Unless you or your child has an underlying health condition or other vulnerability, transporting them from one home to the other would usually be a legitimate journey (based on the current government guidance).
  • Think carefully about maintaining a one-meter distance from other people, carrying hand sanitiser and tissues, and thoroughly washing hands on arrival home.
  • It is crucial that both parents practice sensible hygiene. This means following Government advice such as hand washing, more often, for 20 seconds. Clean and disinfect regularly touched objects and surfaces more often than usual, with your normal cleaning products.
  • Encourage your child to catch their coughs and sneezes in a tissue and ensure they also comply with hand washing advice. The National Infection Prevention and Control Manual has lots of helpful ideas and materials to encourage children to make hand washing part of their everyday routine

The Courts and Tribunal Judiciary posted this statement on 24 March 2020: 

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 23 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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

Further information about Covid19 can be found on the Gov.uk and World Health Organisation websites.

 

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