Child Arrangements and Lockdown: What You Need to Know

There is a lot of confusion surrounding child arrangements and lockdown and what should and shouldn’t be done. Let’s take a look at the most commonly asked questions.

Firstly, separated parents of children in dispute over the child arrangements broadly fall into two camps – those with a court order and those without, so I will look at each camp separately.

In consideration of arrangements concerning children subject to a Child Arrangements Order as a consequence of the coronavirus epidemic, Sir Andrew McFarlane, President of the Family Division, issued his Guidance on Compliance with Family Court Child Arrangements Orders.

Within his Guidance, Sir Andrew sets out that:

“… where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a Child Arrangements Order should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.”

 Additionally, the guidance states that:

“…where parents do not agree to vary the arrangements set out in a Child Arrangements Order, but one parent is sufficiently concerned that complying with the Child Arrangements Order arrangements would be against current public health advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the 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 child or family.”

Ultimately, the key message is that, if coronavirus restrictions cause the letter of a Child Arrangements Order to be varied, the spirit of the Order should nevertheless be delivered by making safe, alternative arrangements for the child affected.

Where children are not subject to a Child Arrangements Order, they are not subject to the same obligations to comply with the terms of the Order. Nevertheless, it would be prudent to adopt a similar approach to that proposed by Sir Andrew. If it becomes necessary to vary arrangements for a child, it would be helpful to make a full, written note of any variations agreed, setting out when it was agreed and upon what basis, so that that written record may operate as the basis of any potential dispute in the future.

Furthermore, if a parent who has care of the child refuses to either facilitate the collection or the return of the child to the other parent on the basis of current public health advice, then whether they were acting reasonably may be for a Court to determine at a date in the future.  Once again, a written record (confirmation via text or email would suffice) in the event this matter does or may need future court determination.

In the short term, in the face of cases involving intractable hostility or parental alienation, it is very more vital to put the welfare of children first, something everyone should endorse and ordinarily would expect. In the face of disputes, there are, however, limited short-term solutions the Courts can offer.

If you have any further questions about child arrangements and lockdown, or any other aspect of family law, then please do not hesitate to contact us.