When the COVID-19 lockdown was first announced, one of the groups to express initial alarm was separated parents with shared responsibility for childcare.

The fear, that the rules on leaving home only for strictly specified reasons would preclude the children of separated parents being able to travel between homes, was quickly allayed by clarification stating that travel of this kind would be permitted.

This created an impression that Child Arrangements Orders (CAO) would simply carry on as before during lockdown, but the reality is somewhat more complicated, largely driven by two factors.

The first is that the highly infectious nature of the virus itself, and the various rules and guidance in place regarding minimising the spread of COVID-19, would throw up a range of scenarios in which a straightforward transfer of a child between two houses was difficult to arrange in line with all physical distancing rules.

The second is that some parents may attempt to take advantage of the limitations of lockdown in order not to comply with a CAO.

The possible scenarios include a child spending time with a parent who begins to show symptoms and is thus advised by 111 to self-isolate, or with a parent who is still working in a public facing role within a key industry, like the National Health Service.

A child’s health must come first

The advice offered by the President of the Family Division, Sir Andrew Macfarlane, considered the issue of CAOs from the family court being impacted by the various knock-on effects of COVID-19 and the lockdown.

In summary, the advice stated that parents must abide by the ‘staying at home’ rules, but can take advantage of the exception granted separated parents. There is no rule however which states that such children must be moved between homes.

The advice goes on to suggest that the key to successfully working around the current situation is clear and calm communication between the two parents. If a CAO is in place then both parents can agree to vary the arrangement, with the sensible option being to write down details of the variation.

It will often be the case that both parents cannot agree however, which is when things become more complicated.

In cases where agreement is not possible, and one parent fears that complying with the CAO would run counter to the Public Health England advice, that parent can vary the CAO via their own parental responsibility, with the caveat being that the variation is to something which is safe for the child.

In the aftermath of the lockdown, when some semblance of normality resumes, the court is likely to look at any review of a CAO on a case by case basis, deciding whether each parent behaved in a responsible manner, and in compliance with advice and stay at home guidance.

Part of this will involve seeking evidence that parents who felt compelled to vary the CAO have made arrangements to ‘catch up’ the lost time for the other parent in the future, and also took advantage of technology such as Zoom, WhatsApp and FaceTime to maintain indirect contact during lockdown.

Anyone considering the lockdown as an excuse not to comply with a CAO they already felt unfair, should think twice about the impact this will have on the relationship between them and the other parent, the security and wellbeing of the child in the long term and the attitude of the Family Court.

COVID-19 lockdown is only going to be a temporary situation, no matter how all-encompassing it may currently seem, and the Family Court is not likely to look favourably on either parent felt to have acted in a manner which was not reasonable, sensible and proportionate.

If you have concerns over access to your children and would like to discuss the challenges you face during the COVID-19 crisis, please get in touch with Michael Vale, a Consultant in the Family team here at Ansons.  Michael can be reached at mvale@ansons.law  or call 01543 267236.

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