Coronavirus: Compliance with Family Court Child Arrangement Orders
When the UK entered into the first lockdown in March 2020, separated parents struggled to access information about whether the arrangements for child contact between both parents’ respective households could continue.
Like many family lawyers, I found myself reading endless government guidance’s and trying to grasp the information to best advise my clients about the legal ramifications. Sadly, we did see that a number of media reports that some parents were using the lockdown as an excuse to stop contact between a child and their non-resident parent. Sir Andrew McFarlane (President of the Family Division) had warned that if parents were exploiting the coronavirus (COVID-19) lockdown to stop a parent from seeing their child, they could face Court action. My overall experience was that many parents were just unclear and alarmed about the lack of clarity readily available.
The UK has entered a second lockdown from today until 2nd December 2020. The guidance states that: You must not meet socially indoors with family or friends unless they are part of your household – meaning the people you live with – or support bubble.
A support bubble is where a household with one adult joins with another household. Households in that support bubble can still visit each other, stay overnight, and visit outdoor public places together.
The full government guidance can be read at www.gov.uk/guidance/new-national-restrictions-from-5-november
What does this mean for contact between a non-resident parent and child/ren?
The Prime Minister stated on 31st October 2020 that “children will still be able to move between homes if their parents are separated”
In response to the initial Government guidance issued in March 2020, Sir Andrew McFarlane highlighted that the guidance does not mean that a child MUST move between homes but the decision being one for parents after assessing their circumstances. It is important to note that Sir Andrew McFarlane was very clear that parents should not abuse the lockdown restrictions to withhold a child spending time with their non-resident parent. The Family Guidance has not been updated and the presumption is that the Family Court would take the same approach during this second lockdown.
Will I be in breach of a Child Arrangements Order if I do not make my child/ren available to spend time with their non-resident parent?
A warning notice is always attached to a Child Arrangements Order which states that if someone breaches a Child Arrangements Order, “the Court may fine or imprison them for contempt of court, or may make an enforcement order or an order for financial compensation.”
There are circumstances where it may be appropriate to not comply with the Child Arrangements Order. It is very important that you seek independent legal advice before considering whether you have a ‘reasonable excuse’ for not complying with a Child Arrangements Order.
Can I vary a Child Arrangements Order without applying to the Court because of the lockdown restrictions?
The Family Court recognised that lockdown restrictions may create difficulties for parents to comply with a Child Arrangements Order. In the national guidance (published in March 2020), it was recognised that parents would need to vary a Child Arrangements Order without following the normal practices of applying to the Court. The guidance states:
7. Where parents do not agree to vary the arrangements set out in a [child arrangements order], but one parent is sufficiently concerned that complying with the [child arrangements order] arrangements 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.
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 delivered in the guidance is that where it is not possible to comply with a Child Arrangement Order for face to face contact to take place, that alternative arrangements should be in place.
Every child’s needs will vary so it important that parents/guardians ensure that they follow the Government guidance and do not expose a child/ren or themselves to the virus. It is extremely important to take this into consideration when making decisions about whether a child should be made available to spend time with their non-resident parent during this second lockdown.
Senior Associate/Head of Family Law