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How Will The Coronavirus Affect Our Child Arrangement Order?

As the weeks have rolled on during the UK’s period of ‘lockdown’ as a result of COVID-19, there have been a number of unforeseen legal consequences for individuals, families, and children. This is especially so for those families with a Child Arrangement Order (CAO).  We have received a number of enquiries from parents who are concerned that they may not be able to comply with the conditions of a CAO due to social distancing rules.  

The Courts clarified their position at the end of March, outlining how parents can adapt to the current unprecedented circumstances.  The advice issued by Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice for the Courts and Tribunal Judiciary, is that parents should adhere to the rules on ‘Staying at Home and Away from Others’ issued by the government.  The guidance makes the point that even though COVID-19 restrictions may mean a CAO agreed by the Court has to be varied, ultimately the spirit of the CAO should always be maintained by prioritising safe alternative arrangements for the child.

30 April 2020
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Can children be moved between parental homes?

The new guidance states, “where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”  It points out that this does not mean children ‘should’ be moved between homes, rather it is the responsibility of the child’s parents to make decisions on what is best given the circumstances.  To do this, they encourage parents to jointly take into account the “child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other”.  

Can CAOs be varied temporarily?

CAOs can be varied during this time, but this depends on whether there is an agreement between the parents regarding what is in the best interest of the child.
If, given the circumstances, and in the interests of the child (e.g. if one of the parents is a key worker and hence a health risk to the child), both parents agree that the terms of the

CAO should be varied temporarily, they are free to do so.  The Courts recommend keeping a written record of the agreement between the two parents.  
If one parent has a genuine concern that complying with a CAO is against the guidance of the public health authorities (and hence places their child at risk), but the other parent does not agree to vary the conditions of the order, then the parent may exercise their parental responsibility to vary the order in the interests of safety. 

They do, however, make the point that if it is subsequently discovered that if the legality of the decision to vary the order by one parent is questioned by the other in the Family Court, the Court will assess whether the decision was sensible given the official advice and the Stay at Home Rules in place at that time, and any other relevant evidence relating to the family and child.

It is also expected that where a CAO is altered and as a result means less time is spent between one parent and the child, alternative arrangements should be put in place, including using online video tools such as Skype, WhatsApp, or Face-Time.  This would be the case if a co-parent has symptoms of COVID-19 requiring everyone in the household to self-isolate for 14 days, including any children. 

Are the courts open to enforce or vary a CAO?

If necessary, it is possible to apply to the Court to vary or enforce a CAO if the parents cannot do this between themselves.  Currently, in order to comply with social distancing rules, the Family Courts are operating using remote hearings.  Judges are likely to be more sensitive to the need for parents to act in the best interests of their children, and to be able to reach decisions mutually and amicably.  If having listened to the details of the dispute, it is reasoned that a breach of the order has occurred, this may result in changes being made against your wishes.  In some cases, the judge may issue a fine and request that any costs be repaid.  For this reason, it is vital that all possible avenues be followed before applying to the Court.  

What if both parents are key workers?

It is not uncommon for both parents to be key workers, and hence the child may be at a higher risk of contracting COVID-19.  In such circumstances, it is for the parents to decide between themselves whether the risk is sufficient to warrant that the child should live with another family member during this time.  Remember, parents who are both key workers are not mandated to put in place alternative living arrangements for their children – this is very much a decision to be made mutually and based in the specific circumstances of the family.

Child Arrangements & Coronavirus

There is little doubt that COVID-19 has added considerable stress and anxiety to many families with a CAO in place.  The more that parents can do to be understanding of each other’s circumstances and the needs of the child, the better the outcome for everyone concerned.

Guillaumes LLP Solicitors is a Weybridge law firm. We have a highly experienced team of family law solicitors who can assist you with any child arrangement order matters.  To make an appointment, please call us on 01932 840 111 or contact us today.