Guidance for separated parents during lockdown

2.4 million Separated families

Last week the Department for Work and Pensions published the latest release of annual statistics on separated parents in Great Britain. The statistics indicated that in 2017/18, the latest year for which figures are available, there were approximately 2.4 million separated families in Great Britain, including 3.5 million dependent children.

That is a lot of families, and a lot of children. Now, obviously, for most of those children arrangements are in place for them to live with, or have contact with, both of their parents. The arrangements may be agreed between the parents, or they may be contained in a child arrangements court order.

Lockdown

Of course, none of those arrangements will have envisaged the present situation, where we are in ‘lockdown’, restricted to our own homes, unable to leave save for essential shopping, daily exercise, medical need or attending essential work.

So how will child arrangements work now?

The first thing to say is that the Government has specifically made clear that the lockdown does not apply to the movement of children under 18 between their parents’ homes. Moving a child from one parent to another in accordance with child arrangements (whether agreed or in a court order) does not breach the lockdown.

But of course it is not necessarily as simple as that. We all have to take into account considerations relating not just to the health and welfare of our own families, but in relation to public health generally. Maybe the arrangements that were made before the Coronavirus crisis are not currently appropriate –what happens then?

Guidance from the President

Well, the President of the Family Division Sir Andrew McFarlane has issued guidance for separated parents during the crisis. The guidance specifically relates to compliance with Family Court child arrangements orders, but most of it applies equally well to those parents who have agreed arrangements for their children.

The guidance beings by saying that parental responsibility, i.e. the responsibility to make decisions relating to a child, rests with the child’s parents and not with the court. This is important: parents do not need to go to the court every time a decision needs to be made regarding their child, even where a child arrangements order is in force.

The guidance goes on to say that 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. In other words, if you are concerned, the first thing you should do is try to discuss the matter with the other parent. If the parents can agree matters, then each parent should record the agreement in a note, email or text message sent to the other parent.

But sometimes of course parents can’t agree. Obviously, no separated parents is going to want to stop seeing their child, or have their contact with their child restricted. The guidance make clear 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 arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe. However, it should be borne in mind that if the matter later goes back before the Family Court then the court will consider whether that parent acted reasonably.

And where Coronavirus restrictions cause the letter of a court order to be varied, the guidance says that the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Government’s lockdown rules, for example remotely – by FaceTime, WhatsApp FaceTime, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The guidance concludes with this:

“The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.”

Further advice

Of course, the above just sets out some basic general principles. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing information on a range of family matters, which you can find here.