During the current Coronavirus Crisis some parents whose children are the subject
of Child Arrangements Orders made by the Family Court have been understandably
concerned about their ability to meet the requirements of these court orders safely in
the wholly unforeseen circumstances that now apply. This short statement is
intended to offer advice but, as the circumstances of each child and family will differ,
any advice can only be in the most general form.
- Parental responsibility for a child who is the subject of a Child Arrangements
Order [‘CAO’] made by the Family Court rests with the child’s parents and not
with the court.
- The country is in the middle of a Public Health crisis on an unprecedented
scale. 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. Parents
must abide by the ‘Rules on Staying at Home and Away from Others’ issued
by the government on 23 rd March [‘the Stay at Home Rules’]. In addition to
these Rules, advice about staying safe and reducing the spread of infection
has been issued and updated by Public Health England and Public Health
- The Stay at Home Rules have made the general position clear: it is no longer
permitted for a person, and this would include a child, to be outside their
home for any purpose other than essential shopping, daily exercise, medical
need or attending essential work.
- Government guidance issued alongside the Stay at Home Rules on
23 rd 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.
- More generally, the best way to deal with these difficult times will be for
parents to communicate with one another about their worries, and what they
think would be a good, practical solution. Many people are very worried about
Coronavirus and the health of themselves, their children and their extendedfamily. Even if some parents think it is safe for contact to take place, it mightbe entirely reasonable for the other parent to be genuinely worried about this.
- Where parents, acting in agreement, exercise their parental responsibility to
conclude that the arrangements set out in a CAO should be temporarily varied
they are free to do so. It would be sensible for each parent to record such an
agreement in a note, email or text message sent to each other.
- 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
- Where, either as a result of parental agreement or as a result of one parent on
their own varying the arrangements, a child does not get to spend time with
the other parent as set down in the CAO, the courts will expect alternative
arrangements to be made to establish and maintain regular contact between
the child and the other parent within the Stay at Home Rules, for example
remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video
connection or, if that is not possible, by telephone. 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.
The Rt. Hon. Sir Andrew McFarlane
President of the Family Division and Head of Family Justice
24 th March 2020
The following websites and other resources may be of assistance to parents in
the present crisis:
https://www.naccc.org.uk – for information on supported contact centres
crisis/ – a new service from National Family Mediation
http://www.relate.org.uk – advice and tips for keeping relationships healthy during
self-isolation and social distancing.