Families and divorce

Coronavirus: Can a child arrangements order be changed?

Mother hugging their child

**UPDATED 21 JUNE 2021**

Agreeing and maintaining child arrangements can be difficult at the best of times, but with the uncertainty of COVID-19 restrictions, it can feel nigh on impossible. Here we consider the implications of the current Coronavirus situation on child arrangements.

To view the current coronavirus restrictions please refer to the government website https://www.gov.uk/coronavirus

Will the current situation prevent me from seeing my child?

No. 

The government advice has not changed regarding children:

Since the beginning, of this pandemic there has been a clear exception to the rules to stay at home: 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.

Children under the age of 18 moving between their parents’ homes are 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. 

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.

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.

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 may wish to try and come to an agreement that involves limited travel between households. 

Despite any ongoing national lockdown restrictions, be aware that both the support bubble and childcare bubble rules will apply. 

We appreciate the government advise around the support and childcare bubbles has not always been clear. While less relevant now, to confirm:

The “support bubble” rules allow you to choose one household with one adult to mix with one other household. Those in a support bubble are able to stay overnight and mix indoors, or outdoors, with the people in their bubble. This may allow you to pick, for example, your co-parent’s or a grandparent’s household to mix with. You do not have to social distance with this group.

The “childcare bubble” rules allow you to mix with two households with at least one person in the childcare bubble being under age 14, for the purpose of providing informal childcare (including for overnight stays). You can have both a childcare and a support bubble. 

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. 

Parental rights

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?

It remains government advice that, if someone in your household or support bubble presents symptoms of Coronavirus or has been contacted by track and trace, the entire household must self-isolate for 10 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 10 full days from the date any person you have been in contact with (or you) test positive or no longer show symptoms beyond a cough or changes to sense of smell or taste, because you will have been in contact with someone with COVID-19. Full details on the self-isolation rules can be read on the NHS website, and by this link. 

What if we cannot stick to the childcare agreement due to illness?

If maintaining routines becomes impossible due to illness or self-isolation, 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 I or my co-parent is a ‘key worker’?

While schools remain shut (except for the children of key workers or clinically vulnerable adults), it is important to make sure that there is someone home to look after your children.

It is important to note that a Court will not order a transfer of residence just because a parent is a key worker. If you have particular concerns because your child is in a recognized high-risk, vulnerable category and the parent with whom they live with is a worker on the front line of the NHS and so potentially more exposed to the Coronavirus (as an example), then you may wish to try and agree a transfer of residence, even if it is for the period of this pandemic.

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/vulnerability/key-worker status 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 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. 

The Family Courts released guidance on this issue:

“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 schools close again, 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 if it becomes necessary for a school to close again or a child is self-isolating. You will therefore need to make sure your child attends any online lessons.

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. 

Unless your household is isolating, 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.

Spending time with your relatives if they are shielding 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, if you have elderly parents or family who are choosing to shield or are not part of your support/childcare bubbles, you may need to explain to your children that your these relatives should not be breaking social distance right now for safety reasons due to Coronavirus but that you can still speak to them by video or telephone call.

Temporary changes

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.

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We shall be updating this article in the light of ongoing Government guidance, so please keep checking back for the latest information.

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