Archive for April 2, 2020

Unsettling Times

In these unsettling times, many parents are feeling a strong sense of fear – fear of the unknown, fears surrounding family finances, fear of getting sick or of loved ones getting sick. Added to this are the underlying fears for many that the other parent will not be making careful decisions, that they might be taking unnecessary risks or that Coronavirus might become an excuse to withhold a child or children. Many parents are experiencing heightened anxiety during these times.

Advice from Government initially wasn’t clear. Michael Gove first told parents that children ought to stay where they currently were. Although this was quickly corrected, this has led to confusion where only his original and uncorrected advice has been shared. Cafcass Government advice to parents is now here and Cafcass advice to parents is here.

There is a presumption that the existing court order or parenting plan reflects a determination that meaningful personal contact with both parents is in the best interests of the child. So, what happens when parents cannot agree or cannot work out how to implement their court under these new circumstances where:

  • one parent might have an underlying health concern,
  • a family member suspects that they have contracted Covid-19,
  • one parent might be a key worker exposed to the virus, or
  • a parent who might have become temporarily out of work?

As parents, most issues involving the safety and wellbeing of our children can feel like an emergency, and often this would lead to applications to court. However, Covid-19 has placed the court system under immense pressure, too. Judges, lawyers and litigants in person are having to learn to harness remote technologies and online video conferencing platforms such as Skype, Zoom and sometimes phone calls to conduct trials, and this is significantly adding to the delays experienced in the courts.

So, court proceedings in times of a pandemic are unlikely to offer a timely solution to short term adjustments to contact arrangements which are, in truth, matters for joint decision making between parents. Courts will expect to see parents who are in dispute over Covid-19 arrangements to have each made reasonable efforts to come to mutual decisions, which the Head of the Family Division has made clear here, as above.

So, parenting orders are still in effect, term time arrangements still stand even when the children are absent from school and the expectation is that parents will work together to try to implement their court order or parenting plan, in the interest of their children’s wellbeing.

However, if you can’t manage to agree matters, mediation can support you to reach an agreement. Mediators can respond quickly and can work with you online to reach agreements that a court would take weeks if not months to hear and conclude. Mediators are skilled at supporting you to work out what the issue is and how to come up with a joint response that works for each of you. Parents who would not normally need the support of a mediator and parents who ‘parallel parent’ and have little contact with one another could find mediation a useful tool to manage these unusual circumstances. Mediation works for different families at different points along their timeline. If mediation wasn’t right for you when you separated, perhaps it would now work for you in coming up with your family’s response to the global pandemic.

Coronavirus Legal Guidance:

Guidance on Compliance with Family Court Child Arrangement Orders

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