COVID 19 lockdown and child arrangements between separated parents

/ Cumbria Family Law/

Following the government lockdown announcement on Monday 23rd March, there was initial confusion about how this would impact on existing child arrangements between separated parents.

The confusion was made worse by Michael Gove's appearance on morning TV following the lockdown announcement when he initially indicated that the children should remain in the household where they were staying at the time of the announcement. The implication of this was that existing court orders and voluntary arrangements should be suspended, and children would not see one of their parents until the lockdown was lifted. He later clarified the position following the backlash.

To clarify the position, the President of the Family Court, Lord Justice McFarlane issued guidance on the 24th March. In summary, the position is as follows:

  • The lockdown guidance issued by the government does specifically provide an exemption to allow children under the age of 18 to move between separated parents’ households. It says:

    “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

    Therefore, provided there are no welfare concerns, children can continue to move between households in accordance with existing child arrangement orders or private agreements.

  • However, if there are welfare concerns, for example, either of the parents or the children are infected with COVID 19 or at significant risk of infection or causing infection, then the guidance makes it clear that parents are expected to make a sensible assessment of the circumstances and agree to vary the arrangements based on what is in the best interests of the children and families.

  • If parents cannot agree but one parent is sufficiently concerned that complying with the existing child arrangements order or agreement would be against government guidelines and poses a risk to either the children or the separated families, then that parent can exercise their parental responsibility to vary the existing arrangements to what they consider to be safe. In this event, in any subsequent court proceedings, the Family Court will consider whether that parent acted reasonably in the light of the official guidance and specific evidence relating to the children and the separated families. Therefore, any parent who decides to unilaterally vary existing arrangements should carefully consider the official guidance and assess their particular circumstances and be prepared to justify their actions, if called upon to do so.

  • If an existing court order or private agreement needs to be varied to protect children or parents, then it would be expected that alternative indirect child arrangements are put in place, e.g. regular video conferencing and telephone calls and that the variation only lasts as long as necessary in accordance with official guidance.

To read the full text of Lord Justice McFarlane's guidance, please click here.

If your existing child arrangements have been affected by the government lockdown and you need further advice or assistance, we are open for business online and by telephone, and are happy to help.

If it is necessary for you to bring an urgent application, the Court will continue to deal with emergency applications by telephone conference or videoconferencing.

For further advice or assistance, please request a case assessment using our online contact form or call us.