2020-04-30
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Varying custody arrangements during lockdown

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Posted by Justin Creed on 30 April 2020

Justin Creed - Family and Divorce Lawyer
Justin Creed Head of Family Law

Good news stories are as rare as hens’ teeth at the moment so it should probably come as no surprise to anyone that tales of bad behaviour by divorced or separated parents over their child contact arrangements were pounced on by news channels in the wake of the government’s ‘stay at home’ guidelines issued on 23 March.

While it is certainly the case that some parents have used the coronavirus-related restrictions as a deliberate weapon against their estranged spouse, the vast majority were simply not clear on how those guidelines applied to their court orders setting out their contact arrangements. This was not helped initially by government ministers not being entirely clear themselves on whether or not children could move between parents. This muddled situation was finally clarified, and Sir Andrew Macfarlane, the President of the Family Division and Head of Family Justice subsequently issued guidance on how to comply with court orders governing child arrangements.

Children under 18 can move between parents

In essence, the ‘stay at home’ guidelines do not apply to children under the age of 18. They may continue to move between their parents’ homes, providing it is safe to do so. The safety point is important: judging whether or not it is safe for a child to move will depend on the other parent’s particular circumstances: if, for instance, they are vulnerable or live with a vulnerable person or are showing signs of infection, or if the child has health issues, then it would be inadvisable for that child to visit. Sir Andrew’s guidance makes it very clear that parents are expected to exercise their common sense and behave sensibly and responsibly, acting in the best interests of all involved when considering whether or not their child or children can move between houses. He also points out that, regardless of a court order, parental responsibility lies with the parents and not the courts.

Parents should try and agree appropriate contact arrangements

Of course, it is very likely that parents may have a different outlook on what constitutes ‘safe’ and this could easily become a major bone of contention. Sir Andrew’s guidance encourages parents to communicate about the most practical way of conforming with government guidelines and come to a mutual decision about any variation of their contact arrangements given the scale of the current public health crisis. In situations where one parent feels much more nervous about continuing existing contact arrangements, they can take unilateral action in response to concerns about the safety of the child, or the safety of others, but they must be able to justify this if their decision is tested in court at a later date. The courts will judge whether or not a parent acted sensibly and reasonably in the light of official advice.

Record any variation in writing

When changing the contact arrangements, it is important that parents record that they have done so, and why, in writing (either on paper or electronically). They must also put in place alternative means to allow the children to communicate with the non-resident parent either by video conferencing or by telephone. This is the sort of action that courts will be looking for in order to determine whether or not the parent was being reasonable. However, parents must bear in mind that any change is temporary; once the government lifts the ‘stay at home’ restrictions, parents will be expected to revert to the agreed arrangements as soon as it safe to do so.

Any variation will only be temporary while the pandemic lasts

In our experience, most parents following a divorce genuinely want the best for their children but at times like these, it is easy to allow emotion to guide decision-making. Our advice is to try and communicate as reasonably as possible, keeping the interests of their children (as well as the health of others) at the forefront of their discussions. As the Family Court guidance sets out, varying a court order will be acceptable providing there is a clear, written rationale for doing so. If parents deliberately use government restrictions as an excuse for preventing their children from seeing the non-resident parent, the courts will take a dim view of their actions.

If you have any concerns about varying your child’s contact arrangements please do not hesitate to get in touch.

About the author

Justin Creed

Head of Family Law

Justin specialises in advising clients going through the personal difficulties of separation in terms of the financial issues and arrangements for children.

Justin Creed

Justin specialises in advising clients going through the personal difficulties of separation in terms of the financial issues and arrangements for children.

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