Emily Curtis-Bennett, Axiom Stone offers a guide for separated or divorced parents
The COVID-19 pandemic has brought anxious and daunting times, especially when it comes to our children and families. The Government has confirmed that children of divorced or separated parents can travel between the homes of both parents during the current lockdown, as long as no parties have been experiencing virus symptoms. If a parent has experienced symptoms and is self-isolating in accordance with Government advice, arrangements for any child(ren) to have indirect contact with them, such as through Skype calls, should be considered.
Some separated parents have an informal arrangement amicably agreed between them. However, some will have a Child Arrangement Order (CAO) made by the Court which governs the contact that each parent has with any child(ren). Not making a child(ren) available to the other parent at the times or days specified under the CAO, will be considered to be breaching the CAO. If the reason for not making the child(ren) available is due to COVID-19 illness, then it is likely that this would be considered reasonable reason by the court and that no further action would be taken.
Advice issued by the Courts and Tribunals Judiciary states that if parents can agree that CAO arrangements should be temporarily varied in light of pandemic, and the lockdown, then they may do so. However, the advice also states that if parents do not jointly agree to vary arrangement set out in a CAO, but one parent is sufficiently concerned that continuing to comply with the CAO arrangements would be against current Government or medical advice, then that parent may vary the arrangement to onethat they consider safe. If is the other parent questions this decision e and applies to the Family Court, the court is likely to look at whether either parent acted reasonably and sensibly in the light of the rules in place at that time.
Furthermore, the advice states that if a child does not get to spend time with one parents as set out in a CAO (whether this is jointly agreed, or not) the courts will expect alternative arrangements to be made for indirect contact, such as FaceTime or Skype or other video connection.
The pandemic has seen reports in the UK of parents exploiting the lockdown guidance and refusing the other parent direct contact with the child(ren) – whether this be breaching informal contact arrangements, or a CAO. Sir Andrew McFarland, Head of the Family Courts in England and Wales, has said that those parents ignoring CAO or other court orders, could face legal action. He added: “If the parents are acting in a cynical and opportunistic manner, then that’s wrong, and the courts will regard it as wrong.”
Parents must, therefore, be very careful. Such a breach of a CAO would leave remedies available to the parent being refused contact. If a result cannot be achieved amicably, then court action can be taken. Types of remedies available include:
Finally, it should be noted that at present, the Family Courts are prioritising urgent cases and hearings during these unprecedented times.
Manisha Raja – Senior Associate
“These are exceptional and unprecedented times and the situation is changing daily. There is enormous pressure on families to work together quite often that is easier said than done. If contact is suspended it must be out of genuine concern for the child and not out of manipulation of the current situation, something that can be overlooked is the impact on the child who has not seen the other parent for a prolonged period”
For advice in relation to child arrangements or contact during these times, please contact Manisha Raja, Senior Associate in our Family Department on 0208 951 6983.
Note: the information contained in this article is accurate at the time of publication on 7 May 2020. The remarks in this article are not a substitute for legal advice on the specific circumstances of any case.