Child Arrangement Orders in light of the Coronavirus (COVID-19)

Co-authored by Tania Ahad

We are currently going through the most trying times in living memory for most of us. The Government has issued guidance and policy regarding social distancing in the hope of limiting the transmission of the virus. However, much as we may hope for a more supportive and collective approach, we know this will not be enough to heal or repair rifts between some parents.

Since this blog was first posted we have had guidance from the President of the Family Division and Head of Family Justice The Rt. Hon. Sir Andrew McFarlane. This can be accessed on the following link: https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/

Dealing with a few key points based on what we know at the moment (but things are changing quickly):

The Government’s own guidance as at 23 March 2020 is ‘where parents do not live in the same household, children under 18 can be moved between their parents’ homes’. This is framed as a can not a shall.
We are subject to the rules about staying at home and away from others which we must comply with and rules which are designed to prevent the spread of infection Read more here: https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others
Parents should assess the circumstances – risk to health, exposure to infection, who else in the house may be vulnerable – as part of the decisions they make.
Views will differ as to what is safe and these decisions will be based on the agendas of those making them and each parent may have a perfectly valid point of view but these may differ.
Order or not you can agree what you like as parents.
Any changes you agree are best recorded in writing to avoid any misunderstandings.
Given the circumstances we all face, if one parent takes the view that compliance with an agreement or order may be contrary to published advice they can vary the position.
If a parent does make changes, then their motives, decisions and reasons may be looked at by the Family Court at a later point.
If arrangements are changed there would be an expectation to make alternative arrangements.
Although the letter of a court order or agreement may be varied the ‘spirit of the order should nevertheless be delivered by making safe and alternative arrangements for the child’.

Let’s start with the lockdown. The aim is to stop people coming into contact with one another to try and halt the spread of a deadly virus. The stakes are literally life or death. This seems to have been treated with a lack of seriousness by some: that’s why the Government is stepping in.

Travelling between homes may mean journeys by car or public transport. This will mean potential exposure whether it is via bus, train and/or tube or coming into contact with people at petrol stations, touching the pump, the card reader etc.

Common sense says we must think about society as a whole. But let’s face it this national crisis has the potential to increase, not heal family wounds. Furthermore, how many will still talk about their ‘rights’. This is the time to really focus on the children and their health, safety and wellbeing both physically and emotionally.

First, what is the legal framework? It is no longer custody (even though it is still used on a seemingly daily basis in the press). The orders are called Child Arrangement Orders and they regulate with whom a child is to live, spend time or otherwise have contact with.

Human nature being what it is means it is likely some parents will want to take advantage of the circumstances these unprecedented conditions will create. We have already had a number of calls where this is happening. Parents who spend time with their children are worried things will change eg where they have travel long distances. One parent may say that they have suddenly found they have to self-isolate and that their child now needs to stay with them and not see the other parent.

We have to take any decision to self-isolate seriously, don’t we? So, what can the other parent do?

We have shared a few steps that you could take to satisfy yourself that the other parent is not simply taking advantage of the situation.

First, we suggest you don’t assume they are not being honest and as such, expressing empathy and concern for their and your child’s well-being would be a good starting point. After all this is a national crisis.

Let’s start with some practical issues (where it is safe to do so):

Is travel really essential or can the need to travel be reduced? This may mean changing arrangements, making more use of Skype, Zoom, FaceTime etc.
It is probably best to accept that if you use public transport this will increase the likelihood of exposing yourself and your child to the virus. Is that really best for you and your child other than for the short-term benefit of face to face time with them?
Both parents should adopt consistent messaging about taking precautions. Don’t argue because that’s what you’ve always done. If one person has adopted a practice which you think maybe a little excessive, then just go with the flow for the time being until the health issues stabilise.
Where is your child going to be most settled? Where do they have most of their ‘stuff’? Be honest with yourself and think about it from their perspective and not yours. That may be really hard but we are facing an emergency both nationally and internationally.
Where are they best able to keep up with their homework?
How can you – as parents and not as former partners who separated – work together and support one another.
Be realistic, if maintenance arrangements are no longer affordable and payments have stopped or reduced this will heighten underlying tensions. Please take a look at our recent blog: Impact of Coronavirus (Covid-19) on child and spousal maintenance payments. This may cause further worry and rifts which will need to be managed.
Is your child better placed in the home where their siblings are?
Make sure you prepare for more restrictions on travel and movement. Make sure bags are packed and be sensible, they may need more than for a couple of nights.
Try and agree and maintain routines for your child in both homes. This may mean you need to compromise. Try it, it may help your longer-term relationship with the other parent.
Use online tools to aide communication. Links to two apps are included below.
Don’t use this as a way of ‘getting your own way’. This is a time for collective responsibility and behaving responsibly as adults. Use this moment in history to model consistent and responsible parenting.

What if you do not feel they are being honest and not just given your historical relationship, but because you have found out something to suggest they are misleading you, for example, that they are self-isolating and your child has to remain with them?

If there is a suggestion your child or the parent they are with has symptoms of the virus and they cannot move then ask for written confirmation of their and your child’s symptoms, where and when they think they may have contracted Coronavirus. Ask who they have been in contact with. If confirmed orally, reflect this back to them in writing using your preferred communication method (e.g. 2Houses App, Our Family Wizard App or by WhatsApp, email etc).
Ask if the child’s school has been told and if not, you should do so (even though they are not now attending). What about telling friends/family of the other parent and/or other children they have been in contact with before the lockdown. Don’t be critical, just say they should all be made aware of the situation.
Ask what arrangements are in place for homework, liaising with the child’s school, access to educational materials etc. Share or ask for login details etc.
Ask for confirmation they have told their employer they are self-isolating and ask if they still have to work at home. What are the arrangements for supervision etc?
If your child’s home is usually with you and you also agree to self-isolate, say you will come and collect your child if they are well enough to travel. In doing so, say you realise you will have to self-isolate and make it clear it would be much better for them to be at their main home with all their things around them to keep them entertained and secure. But, think about whether this is the right thing for your wider family if there is a risk of infection – this would be particularly significant if there are people in your house with underlying health issues.
If there is an existing Child Arrangement order in place, then an application could theoretically be made for a telephone hearing provided the parent with care realises they will have to self-isolate if they succeed (and the judge orders the child to go back to their own home). But bear in mind the already under-resourced court system is buckling under the pressure created by the pandemic, and an early hearing is unlikely. Any hearings will be dealt with by telephone. Ask yourself if your child is safe, is this the best thing for them? And please bear in mind this will not be urgent from the court’s perspective unless your child is at risk of harm. Realistically, medical evidence will not be available and if it is that will be because there is an issue!
If there is no child arrangement order in place, an application could be made for a telephone hearing for an order but you need to manage your expectations about getting a hearing as the courts are overwhelmed (and are likely to be short-staffed) and ask yourself why the other parent’s home would not be suitable on a short term basis.
Check the other parent’s social media to see if they are, in fact, self-isolating. They may still be going to work if their job permits it.
Most significantly, ask to speak to your child by FaceTime or similar, or allow the other parent to do so. Speak to them as regularly as you can. If you are told they are self-isolating you can ask how they are, but avoid any conversations which are designed to catch the other parent out or which undermines the other parent.
Your child may be scared given the news reports they may hear or read and they will need you or the other parent’s love, reassurance and support.
Ask if anything is needed to help them get through this time alone and make arrangements to share homework, clothing, toys etc.
If communication with the other parent has been difficult, use these challenging times to see if you can build some bridges and – if you can afford third party support – speak to a family consultant or mediator to work through any unresolved issues.
Be realistic, the court will likely have to accept if a non-resident parent states they are self-isolating. Testing to ‘prove’ the situation is unlikely to take place and even having symptoms does not mean someone has actually contracted Covid-19.
Be open and transparent with your communications.
Come what may, put your child’s health and welfare first and encourage the other parent to do likewise.