Many parents will be subject to Child Arrangement Orders made by the Family Court making provisions for both parents to spend time with their children. Now that the UK is in lockdown, what obligation are parents under to move children between homes in order to spend time with both parents?
The guidance on this is changing rapidly to respond to current events. This guidance has been collated in order that parents can best decide what to do.
Government guidance
On 24th March 2020, Michael Gove on Good Morning Britain said: “Children should stay in the household they are currently in. We should not have children moving between households”. This was later clarified by Michael Gove on Twitter:
‘ I wasn’t clear enough earlier, apologies. To confirm – while children should not normally be moving between households, we recognise that this may be necessary when children who are under 18 move between separated parents. This is permissible & has been made clear in the guidance.’
This is also the position outlined on the government website: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes”.
Judicial guidance
On 24th March 2020, the President of the Family Division and Head of Family Justice, The Rt. Hon. Sir Andrew McFarlane, issued guidance on compliance with Child Arrangement Orders during the lockdown. While acknowledging the exception to the mandate to stay at home for children living between multiple households, he stated that this does not mean that children must be moved between homes.
‘Government guidance issued alongside the Stay at Home Rules on 23rd March deals specifically with child contact arrangements. It says:
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
This establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.’
Analysis
It is important to note that parental responsibility rests with the parents. As such, parents are under an obligation to balance their duties arising out of a Child Arrangement Order with the government mandate to stay at home.
In assessing risk, parents should bear in mind that children seem to be incredibly resilient to Covid-19. This does not mean that they cannot pass the virus onto others around them. If the household that the child is moving to, or the route they take to go between households, poses a risk of infecting others, parents are strongly encouraged to consider the ramifications of this before moving children.
The first, and ideal, step would be for the parents to agree whether to temporarily vary contact arrangements. If this is not possible, judicial guidance is that a “parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe”.
It is advised that any arrangements, agreed or otherwise, are recorded in written form. In this way, written reasons for variation of the Child Arrangement Order can be referred to in any future proceedings 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”.
In light of the focus on technological contact for social interactions during the lockdown, parents are encouraged to make alternative arrangements to face-to-face contact. The lockdown does not necessitate the cessation of all forms of contact. However, Child Arrangement Orders do not force parents to put their children, their households, and others in danger at this time. A balance must be struck, either in the form of technological contact or face-to-face contact which ensures the safety of others.
For information about resolving disputes regarding children quickly and without relying on the courts, see here.
