COVID-19, child arrangements and the Family Court: A guide for modern families

April 14, 2020

COVID-19 has impacted all of our personal and family lives in different ways, but the current coronavirus restrictions have created some very particular concerns for separated, LGBT+ and multi-parent families.

To put the problem simply: if you are being told to stay at home, what do you do if your child has two homes, or normally has contact with a parent, donor or co-parent they don’t live with?

Children can move between households, within reason

The current government guidance (Stay at Home Rules dated 23 March 2020) sets out that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes” although children should only be moved between their homes where it is safe to do so. If a child or someone in their household is displaying symptoms or has coronavirus then then everyone in the household should be self-isolating and children in this scenario should not be travelling between homes. In reality, there are also other circumstances in which maintaining an existing contact arrangement may be impractical or unsafe during the current crisis.

Child Arrangements Orders should be followed, if safe to do so

Some families, mainly those where there has been a dispute about arrangements in the past, have a Child Arrangements Order (CAO) in place which regulates the time their child spends with their other parent or another adult. Court orders must be followed. But that must now also be counterbalanced with the new guidance during this crisis period.

Who has a Child Arrangements Order?

This might be a court order made in respect of parents who used to be a couple but are now separated, including different-sex and same-sex parents who have built their families through donor conception, surrogacy and adoption. We also work with many families (including LGBT+ families) who have a court order regulating the time a child spends with a known donor or co-parent. In some cases that person might not legally be a ‘parent’ but is still an important figure in the child’s life or a psychological parent.

What if I am unable to follow a Child Arrangements Order?

Contact for children should only happen if it is safe, and the President of the Family Court (a senior Judge) has made clear that the court expects parents to make sensible and reasonable decisions and to agree any variations to contact wherever possible rather than to expect the family court to decide for them.

If the terms of an order cannot be precisely followed, the President of the Family Court recommends being creative in order to keep the spirit of the order alive with alternative arrangements, such as video calls.

Child arrangements currently before the Court will still be decided

Family Courts in England and Wales are still up and running and have adapted to this situation quickly. Cafcass is also working remotely. If you have an upcoming hearing date, the Court should contact you about your hearing. Courts are prioritising urgent hearings such as domestic violence injunctions, child protection cases and child abduction cases.

Depending on your case, the Judiciary will make a decision about your hearing and if it will:

  • go ahead via audio or video technology
  • be postponed
  • considered without a hearing and decided on paper

If we are representing you in your case, we will of course help you navigate the best way forward.

Tips for child arrangements during COVID-19

This is a difficult time for all kinds of families, especially those with children living in different places to those they are closest to. To maintain stability during these circumstances, we recommend:

  • Where possible, try to keep open communication with the other parent or person who your child normally has contact with (and try to communicate with kindness);
  • Acknowledge with children that things are different and reassure them of the newly agreed contact arrangements to help them adjust to a new routine;
  • Be creative in following the spirit of your usual arrangements, and think about how else contact can be facilitated;
  • Make a careful note of what the other parent offers and their reasons, as the arrangements may change;
  • Do not make plans too far in advance as this pandemic is causing things to change very quickly, and be prepared to go back to your normal arrangements as soon as practically possible; and
  • Show your family you love them – by video call if you need to.

What if you cannot agree about arrangements for your child?

If you, or anyone else, is not complying with the child arrangements order, any party to the CAO can apply to the Family Court to enforce the order.

It would be likely that the Court would view following Stay at Home guidance as a reasonable excuse for not complying with the Order unless there is very clear obstruction, or variations to an order extend longer than is necessary.

If you feel that someone is obstructing contact or using the pandemic as an unreasonable excuse to not comply with a court order, you should seek legal advice.

If you cannot agree, your next step is to get help from a mediator or solicitor. A mediator is an independent third party who would help facilitate an agreement between the parties whereas a solicitor advises you (and only you) on your individual circumstances.

Information accurate as of Tuesday 14 April 2020.

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