Written by Grace Wright.
The Coronavirus pandemic and the subsequent ‘lockdown’, set out in the ‘Stay at Home and Away From Others’ Rules of 23rd March 2020, has impacted all of our lives fundamentally over the last four weeks. A key question for separated parents in the current conditions is how to manage child contact if there is a Child Arrangements Order in place. Government guidance clarifies:
‘Where parents do not live in the same household, children under 18 can be moved between their parents’ homes’.
This indicates that a child travelling to another household to spend time with their parent is an exception to the mandatory stay at home provisions. However, the government guidance seems only to envisage situations where children spend unsupervised contact with each parent with handovers taking place to and from each parent’s home. This is not the case for many families and there are many Child Arrangements Orders currently in place providing for professionally supervised contact in contact centres, contact supported by grandparents or other family members, community contact or contact where a third party conducts handover. In these scenarios, it may be particularly difficult to navigate a plan around the Child Arrangements Order to allow the child to spend time with each parent.
On 24th March 2020, The Rt. Hon. Andrew MacFarlane, President of the Family Division and Head of Family Justice, issued guidance on compliance with Child Arrangements Orders during COVID-19. Further helpful guidance has also been issued by CAFCASS entitled ‘Co-parenting and child arrangements in a global pandemic’. The common thread of both documents is clear. Both parents will be expected by the Court to exercise common sense in making safe child-focused decisions for their children in this time of crisis. The President explains that the guidance from the government is non-mandatory and it does not mean that children must be moved between the homes of their parents. Each parent must assess their individual family circumstances and make an assessment as to whether or not the child can spend face to face time with each parent at the current time. If it is not possible for contact to take place as per the Child Arrangements Order, the President emphasises that the Court expects that ‘the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child’.
The best solution is that parents are able to agree appropriate arrangements for their child at the current time. Ideally, the Child Arrangements Order should continue to be followed. If that is not possible due to a conflict with current public health advice, the President recommends that parents should aim to communicate effectively and plan a sensible and practical temporary solution. Where the parents make a mutual decision to temporarily vary the Child Arrangements Order, ‘it would be sensible for each parent to record such an agreement in a note, email or text message sent to each other’.
Term Time or Holiday Arrangements
A particular area of conflict may centre around current definitions of what constitutes term-time and what constitutes ‘holidays’ in light of the current suspension of schools apart from children of key workers. Many Child Arrangements Orders will include specific provisions with arrangements for term-time with differing arrangements taking place during school holidays. The Court will expect parents to adopt a common sense approach when considering how to navigate this issue. CAFCASS emphasise that it is important to endeavour to maintain a sense of routine (‘in these uncertain times, maintaining a sense of routine will help your child to feel safe and secure’). Parents should therefore work together to identify a structure for their child to assist in providing some stability at this unsettling time. This might mean building in longer stays with each parent to reduce the need to travel back and forth. Consideration also needs to be given to the key worker status or otherwise of each parent. If one parent continues to travel to work as a key worker whilst the other parent is working from home, it may well be more appropriate for the stay at home parent to act as primary carer of the child at the current time. Parents should ensure that they follow the spirit of the order as per the President’s guidance and any additional time on special occasions which is not able to take place as per the order should be replaced with a video contact or similar.
Another difficult area centres around handovers. Many families conduct handover to and from school in order to reduce disruption to the child and to reduce exposure to parental conflict. The indefinite suspension of schooling for the majority of children should not be used as an excuse for failing to facilitate contact. If contact can take place safely, parents will need to make alternative arrangements for direct handovers and must ensure that parental animosity is not evident in front of the child.
If domestic abuse is an issue, the Court will have considered Practice Direction 12J of the Family Procedure Rules in making arrangements that are safe for both parents and for the child. If handovers need to be facilitated by a third party or other special arrangements are in place for handover to ensure the safety of all parties, it is important that parties to not feel pressurised into adopting direct handovers. The National Association of Child Contact Centres (NACCC) identifies in its ‘Information for the public regarding the coronavirus outbreak’ that some centres might be able to offer a limited handover service for parents who are unable to manage contact without handover assistance. The NACCC recommends that parents who wish to enquire about the availability of a handover service at a particular contact centre should make enquiries with the NACCC or with their local centre directly to identify what local services are available.
Supervised and Supported Contact
The NACCC recommended as of 25th March 2020 that all centres offering face to face contact should suspend this service at the present time but should continue to support families via technology where this is possible. Unfortunately this means that for parents who spend time with their child at a contact centre, this will not be able to continue at this time. Some centres are offering supervised contact via technology. Where this service is available, families are encouraged to take advantage of this to ensure that the spirit of the Child Arrangements Order is adhered to and the child continues to enjoy the benefit of spending time with both parents.
Contact supervised or supported by family members is also likely to be problematic. Grandparents are often identified as appropriate supervisors but many of these individuals will fall in the over 70 or vulnerable category and will not be able to continue with their roles at present. Again, the spirit of the Child Arrangements Order should be followed and direct contact should be replaced with remote contact. The President’s guidance emphasises that in these particular situations where a child cannot spend time with the other parent as per a Child Arrangements Order, ‘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’.
In the event that parents are completely unable to agree how to proceed in light of the pandemic, mediation services are available and the family courts continue to operate remotely.
Legal practitioners take great care to draft clear and precise Child Arrangements Orders for families but unfortunately no Child Arrangements Order will address what to do in this unprecedented situation. It is vital that parents endeavour to communicate and maintain the spirit of the order for the sake of their child at this difficult time. However, it does seem inevitable that whenever social distancing measures are lifted and some semblance of normal life resumes, the courts are likely to be faced with a huge number of enforcement applications. It is hoped that parents will adopt sensible measures to facilitate contact where possible with the non-resident parent to enable some semblance of normality to continue for their child. However, it is an unavoidable but unfortunate consequence of the situation we find ourselves in that children who spend time with their parent on a supervised or supported basis will be particularly impacted by current conditions.
Members of the Cornwall Street Barristers’ Family Team are able to accept instructions in relation to virtual conferencing, tailored written advice and representation at all types of remote hearing. Please contact firstname.lastname@example.org for further information.
President’s ‘Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders’ – https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/
CAFCASS’ Co-parenting and child arrangements in a global pandemic – advice for families – https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/ The National Association of Child Contact Centres’ ‘Information for the public regarding the coronavirus outbreak’ – https://naccc.org.uk/coronavirus-update