During the current Covid 19 public health pandemic, exercising contact or implementing an existing Child Arrangements Order may well prove challenging for parents particularly if there is already mistrust or hostility between the parents. It may be that the parent with whom the child lives is unwilling to agree to continue the existing child arrangements for the time-being. Or alternatively the parent with whom the child spends time under any order or agreement, may refuse to return the child to the resident parent.
It is important to note, that given the scale of the current pandemic and the Public Health Guidelines, there may well be occasions where stopping direct child arrangements is the safe and appropriate thing to do although it is important to ensure that any such changes to arrangements (whether agreed or unilateral) are recorded in writing. There is however a real risk that in certain situations, one parent may seek to use the Public Health Guidelines as a means of obstructing contact between a child and the other parent, when there still remains a safe and reasonable way in which child arrangements can be facilitated.
As a parent you remain entitled to see your child/children during the COVID19 lockdown, it being one of the exceptions to the Stay at Home Rules, that children can move between their parents’ households at this time. These arrangements of course are still subject to either an existing Court Order or mutual agreement with the other parent. It is important that parents continue to prioritise their children’s welfare when making decisions about ongoing child arrangements. The President of the Family Division has urged parents to work co-operatively together and maintain an open dialogue so that a sensible and reasonable decision can be made about whether to and how to facilitate ongoing child arrangements. Parents will need to consider the present health of the child, risks of infection and vulnerable individuals in either household.
Sadly for some children and their parents, it will not be possible to agree on an appropriate way of dealing with the situation. Parents may well require help and guidance from the courts and decisions made at this time may ultimately have to be reviewed by the courts as to whether those decisions were sensible and reasonable. Those decisions would be examined in existing court proceedings or one parent may have no choice but to return this matter to court or make a new or fresh application to court.
If you are a parent and your child moves between two homes, as per a court order or by mutual agreement, the following information could be useful on situations which may arise during COVID19 lockdown:-
1. Variation of a Child Arrangements Order
This depends on whether you are currently involved in ongoing proceedings or if the court order was made at a Final Hearing:-
- Concluded Proceedings – if you and the other parent have confirmed an agreement in a text or email or note for the time being, this should be sufficient, however, if this is not agreed then an application to court may need to be made;
- Ongoing Proceedings – you should seek legal advice to agree any variation of an existing court order and if this cannot be reached, then an application to court may need to be made;
2. Termination of child arrangements:
- If you are prevented from spending time with your child at this time and you agree that this is appropriate in line with the current Public Health Guidance, then all efforts should be made to facilitate alternative arrangements to make up any missed time. This could be done via telephone/skype/FaceTime/WhatsApp and text or email. If you do not agree then you may want to consider returning this matter to court;
- If you believe that the other parent is relying on the Public Health Guidance improperly and unreasonably preventing you from spending time with your child, again you may need to consider either returning this matter to court or making an application in existing proceedings;
3. If you are refusing to return the child back to the resident parent
If you are the non-resident parent and you refuse to return the child, for health reasons such as any need to self-isolate, then you should agree to make alternative arrangements so that the child can still see the other parent as they normally would. This could again be via telephone, Skype/Facetime/What’s App. If an agreement to do this cannot be reached then you should consider returning return this matter to court or make an application to court;
4. Supervised contact
If you have contact with your child in a supervised setting:
- Contact Centres: as contact centres are not open, supervised contact cannot take place in such settings;
- Supervised contact in the community or in a third party’s home: this is not permitted and a variation of the current order would be required;
- Supervised in the non-resident parent’s home, by another household member living within the same household of the non-resident family: this would be acceptable provided safeguarding to allow such supervised contact has already been undertaken;
5. Travelling for contact
When you are transporting the child to the other parent’s home, you should not use public transport. Both parents must respect social distancing rules and remain two metres away from the other when doing the handover of the child.
If you cannot agree matters, mediation remains available during this time, albeit this would take place on a virtual basis in the current circumstances. This may well be a more effective way of reaching a resolution in this difficult climate provided of course, mediation is considered appropriate.
Finally, these are exceptional and unprecedented times and any court application must be considered carefully on its merits. The courts will be looking very closely at the specific circumstances, available information and Public Health Guidance which applies at the time in order to assess whether the decisions made by parents at this time are reasonable, sensible and safe to both the children, the families and the general public.
If you are experiencing any difficulties in current child arrangements and require any assistance please contact our Family Lawyers on 020 3909 8100. Alternatively, if you require advice or information on any other aspect pertaining to Family Law please contact Mitali Zakaria, Somia Siddiq, Alexandra Wilks or Priyanka Chakravarty at ITN Solicitors.
Please note that given that the ongoing situation relating to Covid 19 is changing rapidly, we are monitoring the information contained in this article and will review whether it needs to be updated if further guidelines are issued by the government in relation to Public Health Advice.