Update: Can I see my child during lockdown?

Spending time with children during the Covid 19 Pandemic

Many people are asking “Can I see my child during lockdown?” and unsure of the rules. Our family solicitors are receiving various enquiries about how the UK Government’s rules on social distancing (implemented on the 23rd March 2020) might affect the terms of any existing child arrangements. Both Child Arrangement Orders made by the court and informal agreements reached between the parents themselves are affected in similar ways.

Many parents are understandably worried that they may not be able to spend time with their children until the rules are relaxed. There are also parents who feel it is safer, either for the children themselves or the vulnerable individuals living in their household, to keep their children in one home. All of these parents are worried that this will mean changing a longstanding agreement with the other parent or even breaching a Child Arrangements Order.

Children can be moved between households, but that doesn’t always mean that they should

The Government has made a clear exception to the stay at home rules; children under the age of 18 can be moved between their respective parents’ households. However in reality, whilst children can be moved from house to house, it does not necessarily mean it is currently sensible or safe to do so. Guidance issued by Sir Andrew McFarlane, head of the family courts in England and Wales reinforces this view. The guidance clarifies the family court’s perspective to be that simply because children can be moved does not mean that they must be moved.

The court emphasises that parental responsibility rests with parents and not with the court. This means that the decision about whether a child is to move between parental homes is for the child’s parents to make together, after assessing the circumstances. Parents must take into account all circumstances including the child’s health, the risk of infection and the presence of any vulnerable individuals in either household.

Any changes to an agreement must be recorded clearly

The guidance highlights that parents can exercise their parental responsibility and agree that the terms of a Child Arrangements Order should be temporarily varied. The recommendation is that any agreement to vary a Child Arrangements Order should be recorded in a note, email or text message.

Unfortunately, not all parents are able to communicate with each other in order to reach an agreement. Where parents cannot not agree to vary the terms of a Child Arrangements Order, but one parent is concerned that complying with it would be against advice from Public Health England or Public Health Wales, that parent may exercise parental responsibility in order to vary the arrangement to one that they believe is safest for all parties.

What if the other parent doesn’t agree?

If the actions of a parent are questioned by the other parent in the family court in due course, the court states that it will assess whether each parent acted reasonably and sensibly in light of the official Government advice and the stay at home rules in place at that time. The court will take into account any specific evidence relating to the individual child or family.

Do the child and other parent still have a right to see each other?

The guidance stipulates that if a child does not get to spend time with a parent in line with an Order, the court expects alternative arrangements to be made in order to maintain regular contact between the child and their other parent, whilst observing the stay at home rules. For example, the parent who has kept the child in their household should make an effort to facilitate regular indirect contact between the child and their other parent via platforms such as FaceTime, WhatsApp Video, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The court expects that where Covid-19 restrictions cause an order to be varied, the spirit of the order should be delivered by making safe alternative arrangements.

The child’s welfare and best interests remain the fundamental focus

Sir Andrew McFarlane makes it clear that whilst parents have the right to exercise their parental responsibility in order to vary arrangements as a result of the current Government restrictions, it is still expected that a child from a separated family continues to spend time with both parents, as long as it is safe to do so.

Courts will still take action where necessary

Parents seeking to exploit the situation in an aim to reduce or stop visits completely will still face court action. Sir Andrew McFarlane seeks to remind parents that their child’s welfare comes first, with the presumption that it is in a child’s best interests to have a meaningful relationship with both parents. Whilst a child’s welfare may mean arrangements to spend time with another parent need to be suspended for the timebeing, he exclaims “if parents are acting in a cynical and opportunistic manner, then that’s wrong, and the courts will regard it as wrong”.

If you feel unable to communicate directly with your former partner, or you have tried but have been unable to reach an agreement with them about what is best for your child, we can assist you by contacting them on your behalf. If suitable, we can refer you to a suitable mediation service, most of which are continuing to operate remotely via video or telephone conference calls.

The situation is constantly changing and the Government may bring in further guidance in due course. However, this post represents our best interpretation of HM Government’s guidance, where applicable, at the time of our writing. Both the content of the post and any guidance it is based upon will be subject to change.

Progression remains open for business with our staff working from home. We are able to provide advice via telephone or video calls.