Separated parents: Coronavirus and child arrangements

It's December, hats and scarves are out, we are all thinking about how we will spend the festive holiday and who we can spend it with in light of the COVID-19 tiered restrictions. Recently we have had to put more thought into how to spend time safely with the people we love where they live in another household - separated parents who co-parent are no exception.

What happens if my ex-partner is using COVID-19 as a reason not to facilitate contact with our children?

The Prime Minister made it clear in his press release on 31st October 2020 that children are still allowed to move between households where their parents are separated. Contact must of course be carried out in a safe way and where a child is required to self-isolate this is a genuine reason to temporarily pause contact.

The President of the Family Division of the High Court of England and Wales and Head of Family Justice, Sir Andrew McFarlane has emphasised the importance of open communication between parents who are separated in relation to facilitating contact. Where possible, parents should propose practical solutions to make sure that children spend time with both parents.

Inevitably there will be situations where parents cannot agree between themselves. All attempts to resolve issues should be documented. One parent may wish to consider options to regulate contact with the children.

What is a Child Arrangements Order and how can I apply for one?

A Child Arrangements Order is made by a Court and decides issues such as who the child shall live with and who they will spend time with.

Anyone with parental responsibility for a child can apply for one (and other categories of people may also apply).

Both parents are usually required to attend a Mediation Information and Assessment Meeting prior to applying for a Child Arrangements Order. A mediator will initially meet with both parents separately to assess whether the matter is suitable for mediation. If it is, both parents will meet (with the mediator) with the aim of agreeing a way forward between them. If the matter is not suitable for mediation, the mediator will provide written confirmation to tell the Court this.

What if there is a Child Arrangements Order already in place?

Where this is in place, parents are free to agree a temporary variation of it. Any variation should be agreed in writing, for example, in a text message with the other parent responding to give their agreement.

A parent can apply to the Court to vary a Child Arrangements Order if they believe that the current arrangement has become unsuitable but the other parent refuses to vary this.

A parent can also apply to the Court and ask it to enforce a Child Arrangements Order where the other parent refuses to follow the current Order in place. The Court will look at (amongst other things):

• whether the parent who is withholding contact has acted sensibly in light of the Government’s health advice;
• any specific advice that the parents have received in relation to the health of the child;
• if face to face contact is being withheld because of COVID-19 related concerns then the Court will expect to see that the withholding parent has made reasonable attempts to facilitate alternative contact, for example through regular Zoom, WhatsApp or Skype calls;
• the wishes and feelings of the child where they are mature enough to understand their situation; and
• if a Child Arrangements Order is varied, this must make safe alternative arrangements for the child.

We all know how easy it is to be reactive when a situation has become frustrating. However, parents who are thinking about breaching a Child Arrangements Order should consider that a Court can impose penalties in such circumstances including (but not limited to) an unpaid work requirement, fine or even prison.

Are the Family Courts open now?

Yes. The Family Court has adapted and is hearing matters online through the Cloud Video Platform. Further information about remote hearings can be found in Jennifer Allen's article.

If you need help with child arrangement matters or are considering asking the Court to make a Child Arrangements Order, please feel free to contact a member of our Family Law Department on 01242 574244. We are able to offer virtual appointments.