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The current public health crisis is unprecedented and there is general concern as to what to do when balancing the welfare of the child with the restrictions on movement imposed by government. This has been causing confusion; in particular, it is hard for parents to know how to facilitate contact in line with court orders.
Thankfully, we have been issued some guidance which will seek to ameliorate parents' anxieties at this time and assist them with managing child arrangements when there is a child arrangements order in place.
First it is important that all parents follow the government guidance on staying at home and away from others. We are essentially in lockdown which means that we are not permitted to leave our homes, save for daily exercise, to buy food/medical essentials or if you are a key worker.
The guidance is that children under 18 can be moved between separated parents' homes. It does not, however, mean that children must be moved between homes. The child's parents have to take this decision 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.
It is advised that parents should openly communicate with one another about their concerns surrounding contact and handover. They need to reach practical solutions together. There are serious health risks to consider and both parents aren't necessarily going to agree. A conciliatory approach is going to be in the best interest of the child overall.
If the child arrangements order does need to be varied for a short time it would be advisable to record these in an email, text or by letter/note between the parents. Set dates for review of any arrangements so parents are both clear, as the position is changing constantly.
If parents cannot agree to vary the arrangements set out in the child arrangements order then one parent can unilaterally vary the arrangement if they believe that to comply with the order would be against public health advice putting them and the child at risk. If there is a dispute later in court about this then the court can assess if the parent acted reasonably and sensibly given the guidance and the circumstances of the case.
Alternative methods of communication
In the event that the arrangements for contact are varied by agreement or by one parent acting unilaterally you are expected to provide alternative arrangements to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by FaceTime, WhatsApp video calling, Skype, Zoom or other video connection or, if that is not possible, by telephone.
In summary, if a court order is in place and it is possible to safely comply with the order, do so. However, if it is not safe to continue the order in line with the government guidance for the current Lockdown, you should follow the additional government guidance.
The Family Team at Pinney Talfourd appreciate that this is a challenging time for us all and we hope that this article helps readers to navigate the tricky times ahead of us.
This article was written by Kiren Dhillon, Senior Associate in the Family Law team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2020.