Covid-19 Lockdown – what does this mean for children living in two households?


Many separated families are facing difficult and challenging decisions in light of the ’lockdown’ measures imposed by the UK government on 23 March. Sadly, many parents are having to strike a difficult balance between following government guidelines on staying at home, self-isolation and social distancing on the one hand and ensuring their children’s best interests are protected and existing Child Arrangements Orders are respected on the other.

The government guidance issued on 23 March 2020 (the ‘Stay at Home rules’) includes an exception to the mandatory Stay at Home rules to enable those children who live in different households to move between their parents’ homes. However, parents will still need to consider the spirit of this guidance and other public health measures when deciding whether it is safe and reasonable to allow contact to still take place. This inevitably raises challenges for many separated families, in particularthose families in which there may already be hostility between parents. In such situations, decisions about how best to comply with lockdown measures could lead to conflict.

Mr. Justice Macfarlane helpfully issued a statement on 24 March 2020 setting out further guidance for separated families and compliance with Child Arrangements Orders in light of the exception for moving children under the ages of 18 between parents’ homes.

He warned that despite the exception “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, risk of infection and the presence of any recognised vulnerable individuals in one household or the other”. The appropriate and safe decision will vary from family to family depending on the health and circumstances of the children and other  members of the household.

Mr. Justice Macfarlane further calls for parents to ensure there is an open dialogue and communication between parents, urging them to co-operate in making sensible and reasonable decisions about how child arrangements should be best facilitated. He urges parents to consider agreeing a variation to the child arrangements where this is necessitated and recording that agreement either by email, text message or in a note.

If the parents cannot agree and one parent makes a decision to suspend a child arrangements order for fear it would not be safe to allow the existing arrangements to continue, then ultimately if that decision is challenged by the other parent, the court will have to consider whether that parent’s actions were sensible and reasonable in the circumstances.

Mr. Justice Macfarlane makes it abundantly clear that where direct child arrangements cannot be facilitated, then all other efforts to facilitate indirect contact should be made to include Facetime, WhatsApp, Skype, and Zoom as regularly as possible.

The key message is that “where the Covid 19 restrictions causes the letter of a court order to be varied, the spirit of the order should be delivered by making safe and alternative arrangements for the child”. It should be borne in mind however that this is general advice only and the appropriate decision will depend on the specific circumstances of the family and expert advice on this matter may well have to be sought.

If you require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Alexandra Wilks and Priyanka Chakravarty.

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.

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