Child Arrangement Orders and Coronavirus – I’m not seeing my child what can I do ?

From the moment that the Government announced the possibility of lockdown measures being imposed, lawyers were inundated with questions about whether and how Child Arrangements Orders should be implemented over this period.

As lockdown continues one of our local CAFCASS officers has told practitioners that many parents involved with the service have been able to reach sensible and child-focused decisions about how to continue or vary the arrangements during the pandemic.

In some instances however parents are not seeing their children and are not in agreement with the decision of their co-parent’s to vary the arrangements.

CAFCASS advice issued on 23rd March advised that where possible child arrangements orders should be complied with saying “unless there are justified medical/self-isolation issues, (or some future nationally issued guidance or expectation associated with leaving the house in your area) children should also maintain their usual routine of spending time with each of their parents. If there is a Child Arrangements Order in place this should be complied with unless to do so would put your child, or others at risk…”

However this advice pre-dated the Prime Ministers announcement – later on the 23rd March – of the current lockdown measures.

The President’s Guidance issued on 24th March reminds parents that “parental responsibility for a child who is the subject of a Child Arrangements Order made by the Family Court rests with the child’s parents and not with the Court” and goes on to state that “the expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time”.

However paragraph 7 of the Guidance reads “Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW 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.”

The Guidance concludes with the following: “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”.

If you are a parent who is not being allowed to spend time with your child and you do not agree with that decision it would seem sensible to do the following:

  • Keep a record of your discussions to include a note of the other parent’s stated objections to maintaining the child arrangements and of any alternatives / options you have offered
  • Avoid becoming so entrenched in your position and/or angry with the other parent that it makes it hard to spend time with your child remotely or leads to arguments that your child is exposed to
  • Look at some creative ways to spend time with your child albeit remotely. The Family Justice Young People’s Board (FJYPB) has published a Covid-19 Information Booklet which contains “top tips” for staying in touch with family and friends. Suggestions include making videos, sending photos, playing games online and setting challenges (for example a “Bake off”) and then sending photos of the results to each other
  • Speak to a lawyer about your particular circumstances in order to get advice about future steps OR consider whether mediation may assist you and your co-parent to come up with a plan that works for the whole family. Many mediators, including the writer, are continuing to offer services online.