As a result of the current Covid-19 crisis, parents with whom their children do not live are understandably concerned about the impact the Government’s recent Stay at Home rules will have on their ability to continue to spend time with their children safely.
The Stay at Home Rules are clear that you should only be outside for the purpose of essential shopping, daily exercise, medical need or work that cannot be carried out at home. However, alongside those rules, the Government has also issued guidance that establishes an exception. “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” This enables parents to move children between households (subject to the requirements of self-isolation where necessary) to facilitate the children continuing to spend time with both parents. Although this exception exists, it does not provide that the children must be moved between homes, and it is hoped that parents will communicate with one another to decide whether it would be safer for the children to stay with one parent for the time being, when considering the children’s present health, the risk of infection and the presence of any vulnerable individuals in either household who need protecting.
If there is a Child Arrangements Order (“CAO”) made by the Family Court in place, parents may also be concerned about their ability to comply with the requirements of the order without contravening the Government’s advice. If the parents can agree, they can exercise their parental responsibility to temporarily vary the terms of the CAO. It is advisable to record the agreement reached so that both parents have a copy, either by way of email or text message.
Where an agreement cannot be reached between parents, and one parent is sufficiently concerned that complying with the CAO would put the child at risk, or act against advice from Public Health England/Wales, that parent may unilaterally exercise their parental responsibility to temporarily vary the arrangements under the CAO to ones they consider to be safe. If these actions are later questioned by the other parent, the Family Court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the children or family.
If it is not possible for the children to spend time with one parent, as set out in the CAO, or as agreed between the parents if there is no CAO, alternative arrangements should be made to establish and maintain regular contact between the children and the other parent. Such remote arrangements could include FaceTime, WhatsApp calls, Zoom or other video connections. Where video calls are not possible, this should be by telephone.
Whilst this may become a difficult time for the children to continue to spend physical time with the non-resident parent, the key message from the court amidst these unprecedented circumstances, is that the spirit of the CAO (or in absence of a CAO, the agreement between the parents) should nevertheless be delivered by making safe alternative remote arrangements for the children to continue to spend time with that parent.