BY MARK HANDS 

Last night, after the Prime Minister’s address to the nation many separated parents will have been worried about how the Government’s latest advice will impact both on existing arrangements with their children and those currently seeking orders.

I have seen and read many social media comments about this topic. There seems to be a wide divergence of views from family lawyers up and down the country.

The Law – (briefly, I promise!)

The first (and perhaps obvious) thing to say is that these are unprecedented times. There is no precedent for the treatment by the courts of the impact of Covid-19 on the movement of children across different households.

In short summary, as a parent enforcing an order you must prove beyond all reasonable doubt (note the much higher criminal standard of proof) that there has been a breach of the order. The other parent may have a defence if they can prove, on the balance of probabilities (note the lower standard of proof) that they had a reasonable excuse for breaching the order.

The question, therefore, is whether self-isolation with a child, to fight the Coronavirus, amounts to a reasonable excuse to breach a CAO?

For the purposes of this brief piece, a CAO means a Child Arrangements Order (ie an order that a child live with (residence) or otherwise spend time with (contact) with a parent).

CAFCASS

Prior to the introduction of the new measures imposed by the Government (on 23 March 2020), CAFCASS helpfully issued this guidance:

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/covid-19-guidance-for-children-and-families/

In essence CAFCASS say that, save for medical/self-isolation reasons, children should maintain their usual routines for spending time with their parents. They made clear that if there is a CAO in place this should be complied with unless to do so would put your child or someone else at risk (the reasonable excuse defence).

Updated Government Advice

The government has published further guidance. There are now much stricter measures for staying at home. The full link can be found here:

https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others#fnref:1

The footnote at the bottom of this guidance makes clear that the movement of children between parents’ homes is still permitted.

What to do?

No matter the circumstances, however unprecedented, we must go back to the law. The law is clear. The starting point is that a parent must comply with an order. If they do not comply it may be possible for the other parent to enforce the order. The parent with the child may then successfully argue that they had a reasonable excuse for not complying with the CAO.

This, like many areas of family law, will undoubtedly be treated on a case by case basis, depending on the particular facts and the approaches by different judges. The government has not (yet) prohibited the movement of children across households where there are separated parents.

The practical reality is that the courts will be unimpressed by parents that are not able to come to an agreement in times of a national emergency. In my view the following practical steps should be adopted:

  1. Put aside any parental tension to apply a united front for your child. Even if they do not show it, they are likely to be feeling very anxious. They must be able to look to their parents for solidarity and support. This means that each parent has a duty to support a child’s relationship with both parents during these times. They absolutely cannot be used as a source of conflict;
  2. Pursuant to the guidance of CAFCASS think creatively about using Skype and Facetime to support a child’s relationship with the other parent, but also, think outside the box as long as it safe;
  3. Make a joint decision about self-isolation that is in the best interests of your child. As hard as it is for the other parent, it may be better for a child to self-isolate with the parent in whose care they are currently, or to move the child to the other parents care for at least the next three weeks. This is hard, but crucially the child’s safety and wellbeing is absolutely paramount. In these circumstances, I am in no doubt that there would be an absolute expectation by the courts, and emphasis on the parent with the child, to apply point 2 above. Normally a CAO prescribes when the other parent can contact their child by Facetime or Skype. In my opinion, there should be a complete relaxation on any prescribed periods of indirect contact between a child and other absent parent;
  4. Communicate honestly with each other about exposure to the virus and any symptoms. This is so important; 
  5. Be mindful of the content of any messages or emails you send as these can all be used as evidence, now or in the future.

I am aware that for some parents there will be dismay as sensible communication is simply not possible. There may be existing hostilities towards contact, such that they feel Covid-19 is being used tactically to deprive a parent with the time they should spend with their child.

The courts are still hearing cases and can do so remotely. In worst case scenarios, and where the evidence suggests it is appropriate, it may be possible to seek urgent orders from the court. Such applications should, however, be regarded as a measure of last resort and only made where the evidence is clear and cogent. This is unchartered territory and the approach of the courts remains uncertain.

But the law has not changed. CAO’s are still enforceable orders of the court.

Mark Hands is a Senior Associate in Birmingham Family Team