UPDATED ON 27MARCH 2020
Agreeing and maintaining child arrangements can be difficult at the best of times, but when the Government advises everyone to stay at home unless for “very limited purposes” and schools close, it can seem nigh on impossible. Here we consider the implications of the current Coronavirus situation on child arrangements.
Will the lockdown prevent me from seeing my child?
No. The Government has given full guidance on staying at home and away from others. They set out some exceptions to those people told to stay at home. One provision covers: Any medical need, or to provide care or to help a vulnerable person. This part has a specific clause that includes moving children under 18 years old between their parents’ homes.
Speaking on 24 March, Michael Gove, Minister for the Cabinet Office, clarified that children under the age of 18 moving between their parents’ homes, was considered to fall within the exceptions to the stay at home mandate – although movements should be limited to only that which is necessary.
This makes clear that the usual contact arrangements that your children have, can and should continue.
Contact and visitation rights - arrangements by agreement or by Court Order
Child arrangements can be informally agreed between separated parents or by Court order. The arrangements will cover two key aspects:
who your child is to live with and for which nights
how often they stay overnight with the other parent.
If you have not yet agreed on child arrangements with your co-parent, please contact us and we can advise you on the best way forward.
Do I need to change my child arrangements due to Coronavirus?
If you and your co-parent are both well, there is nothing to prevent the normal arrangements largely continuing, albeit with added precautions.
If you feel that your current arrangement involves extensive movement between households, you and your co-parent should try and come to an agreement that involves limited travel between households. There may be other changes that you want to make which are considered below.
It’s always preferable, where possible, to come to an agreement with your co-parent as to how arrangements are to continue. That being said, every situation is different and agreeing new arrangements with your co-parent may not be easy or possible.
Whatever you and your co-parent have in place, it’s especially important in these difficult times that your child’s welfare is of first and foremost consideration. This includes making sure that they see both parents regularly - by phone or video call and, where possible, in person - as well as their extended families. The child’s wellbeing is paramount and the basis upon which the Courts will make decisions.
If we agree, can we change the arrangements set out in the Court Order?
Yes. The Court Order can be varied by agreement of both co-parents. This could prove useful in a situation such as Coronavirus, where different arrangements may need to be made.
What if I or my co-parent is experiencing symptoms?
Government advice has changed so that everyone is now to stay at home except for a limited number of reasons, and must maintain social distancing. Additionally, it remains Government advice that, if someone in your household presents symptoms of Coronavirus, the entire household must self-isolate for 14 days. If this becomes necessary, the importance of regular video chats or phone calls cannot be stressed enough, to ensure both co-parents maintain contact with the child. After the expiry of the self-isolation period, contact can continue and your children can move between households.
Should my child come to live with me instead, if my co-parent is vulnerable and at a higher risk due to Coronavirus?
If you are better placed to look after your child in the event your co-parent becomes ill, you can change the arrangements. However, both co-parents must agree and you must put the welfare of the child first. There is nothing to prevent your child living with you while your co-parent is ill - even if you have a Court Order in effect; this is because Court Orders can be varied by agreement. If you do take over primary care for your child, in line with Government advice, you and your child will both need to self-isolate for 14 days, because you will have been in contact with someone with COVID-19.
What if I or my co-parent is a ‘key worker’?
With the schools now largely closed, the Government is encouraging some schools to remain open with a skeleton staff in place for key workers such as NHS staff, supermarket delivery drivers, police etc. If your co-parent is a key worker and you are working at home, you may want to arrange for your child to live with you during this time, perhaps because of your concerns regarding Coronavirus and because you are largely at home, while they are at out at work.
What if we cannot stick to the childcare agreement due to illness?
If maintaining routines becomes impossible due to illness, the welfare of your child when trying to organise new arrangements will be the paramount consideration. This is the basic principle that a Court would apply. The Court would also expect you to follow Government Coronavirus guidelines as to what is deemed safe in terms of an individual’s movements during this period.
What if we don’t agree?
If you have a Court Order in place and cannot come to an agreement about taking over the child’s care due to illness of the other co-parent, new guidance by the Courts suggest that you can take unilateral action to take such steps that you think necessary to act in your child’s best interests. However, you should consider any changes with your co-parent together if at all possible. 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.
What should I do if the Court Order sets out the time the children should spend with the other parent?
You need to try and maintain the pattern within the Court Order, provided you can do so safely within the Government’s Coronavirus guidelines. If you do not feel this is possible, try and agree something different that better protects your child’s welfare.
Now schools are closed, what should I do if the Court Order sets out different arrangements for term time and holiday time?
You and your co-parent can try to come to an agreement using your own new definitions of ‘school hours’ and holiday/term time. Many head teachers have been advising of plans to continue to educate through social media or online classes. Ask your child’s teacher for further information on this point. Similarly, many teachers have been offering assistance with home schooling through social media. So there will still be some definition between term time and holiday time, although it seems the precise timings will be largely down to each household.
It also follows that your child’s school hours will be the same. Instead of your child learning at school, they will be sitting at the kitchen table doing remote school working during their normal school hours and on the usual days. You can replicate the pattern that was agreed by the Court, even though the child is not in school.
Now schools are closed, what should I do if the Court Order sets out who is picking up my child from school?
Similarly, if there is an agreement that your co-parent picks them up after school on a day when they are due to go to stay with that parent, you could suggest that your co-parent comes to your home to pick them up in the same way.
Entertaining your children during the Coronavirus crisis
If you normally take your children out for contact sessions, or overnight stays, make sure that all activities are mindful of the current social distancing recommendations – follow Government guidance on this so that your children are doing this safely.
Appropriate contact sessions could include making use of the one form of exercise per day mandate set out in recent Government advice, or, if you live nearby, taking your child back to your home for the duration of the contact session.
Spending time with your elderly relatives while they are isolated due to Coronavirus
One of the challenges of co-parenting is making sure both of your extended families are regularly involved in your child’s life. However, you may need to explain to your children that your older relatives should not be visiting them right now for safety reasons due to Coronavirus. However, it’s important, for your children and extended family alike, that you all keep in contact. This is where video chat software, such as Skype, Facetime or Zoom, comes in very useful and you should make every effort to use technology to keep in touch.
Will school fees be refunded for when the school is closed?
This is largely dependent on whatever the school contract says. You should also check whether you have school fees insurance. Speak to your insurance company to see if you are entitled to any money back. This may also depend upon the virtual school arrangements each individual school may make in order to continue their obligation to provide education for your child.
It will probably be difficult and often frustrating that these restrictions are in place. However, it’s reassuring to remember that all constraints placed on your normal child arrangements are temporary. Once these Government restrictions related to Coronavirus are lifted, your arrangements should return to those that were in place prior to this difficult period.
Guidance from the Family Court
Any advice provided in this statement should be considered a general guide as the circumstances of each child and family will differ.
Our specialist family lawyers are on hand to provide you with specific advice relevant to your situation.
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.