Lockdown restrictions may have lifted ever so slightly recently, but the past eight weeks have presented many difficulties for families that are subject to child arrangement orders. Adhering to lockdown requirements whilst balancing relationships with ex-partners and complying with Court Orders has been tough for some.
Proceedings involving children are fraught with emotion at the best of times and it is all too easy for parents to accuse the other of deliberately withholding contact with the child due to self-isolation or the lockdown. We are in exceptional and unprecedented times and the reality of whether a parent should withhold contact is very much on a case to case basis.
At the outset, it is important to note that not all families are expected to have a Court Order in place in respect of the children. Indeed, the Courts adopt a “no order” principle where no Court Order is better than having a Court Order because of the stress, time and money Court proceedings place on families. In addition, if every separated family has a Court Order, the Courts would be inundated with applications.
A Child Arrangement Order, formally known as residence/contact orders or custody, determines how much time a child spends with each parent. These are usually described as either “live with or spend time” with orders, which were changed to minimise adversarial language. There is no template or precedent on the pattern of these arrangements because every family’s circumstances are different however, parents are expected to comply with the arrangements and make the child available for contact.
Prior to the lockdown on 23 March, the government advised that individuals who were vulnerable or high risk or those with symptoms to self-isolate for at least 14 days. The lockdown has imposed even more stringent requirements whereby individuals, including children, are not permitted to leave their home for any purpose other than essential shopping, daily exercise limited to an hour a day, medical need or attending work.
Parents are concerned about their child travelling between households and whether they would be in breach of a Child Arrangement Order if they refused to facilitate this. The President of the Family Division, Sir Andrew McFarlane, issued guidance alongside the government’s Stay at Home Rules on 23 March specifically with child contact arrangements that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
However, if a parent has to self-isolate, the child must remain at home until the expiry of the 14-day period. Unfortunately, there have been circumstances where one parent has accused the other of taking advantage of the Coronavirus to temporarily suspend contact. Without being able to obtain a medical certificate to confirm symptoms or, indeed, access to testing, the Court would consider whether the parent acted reasonably and sensibly in light of government advice. It is of course quite sad to think of parents who manipulate Coronavirus as a means to hurt the other parent but matters involving children can be emotionally charged and it is not uncommon for accusations to be hurled between parents.
More than ever, parents are encouraged to communicate effectively and where they are unable to comply with a Child Arrangement Order, parents are expected to make alternative and regular contact between the child and the non-resident parent. This can be done remotely through FaceTime, WhatsApp video and audio call, Skype, Zoom, Alexa Show or any other device. If a parent takes a view that a Child Arrangement Order needs to be varied then they should communicate this through email, text message or note to one another. This would certainly assist the parties if the case were returned to Court.
The welfare of the child must remain at the forefront of any changes in their contact arrangements and this includes considering their health and safety in light of Coronavirus. To quote Sir Andrew McFarlane, “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.”
If you are unsure about circumstances surrounding Child Arrangement Orders, our team of experts can gladly assist.
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