We are living in unprecedented and challenging times and many parents are concerned about how the government’s new Stay at Home rules will affect their ability to see their children. This article is intended to offer advice for those parents whose children are the subject of Child Arrangements Orders, but it is important to bear in mind that our advice is meant generally, and each case will turn on its own facts and circumstances. Should you find yourself in a position where you need specific advice, please do not hesitate to contact our family team, who will be more than happy to help.
We are sure you have all seen the government’s rules in regards to staying at home and away from others. The new rules mean that you should only leave the house for one of the following four reasons:
- Shopping for basic necessities;
- One form of exercise a day;
- Any medical need, or to provide care or help to a vulnerable person; and
- Travelling to and from work, but only where this absolutely cannot be done from home.
In addition to these four exceptions, the government have also confirmed in their guidance that where parents do not live in the same household, children under 18 can be moved between their parents’ homes. This is an important additional exception to the mandatory Stay at Home requirement, but it does not mean that children must be moved between homes. It is your responsibility as a parent to make practical and sensible decisions for your children. Read the full government guidance on the new Stay at Home rules here.
As a parent, your children’s health and safety is your responsibility. If you or anyone in your household are displaying symptoms of COVID-19, or have been exposed to someone who has COVID-19, then you must follow government guidance and self-isolate. This means that if your children live with you, they cannot be sent for contact with the other parent until the end of your self-isolation period. Similarly, if your children live with the other parent, and you are self-isolating, the children cannot come to your home. You must follow the government’s guidelines, which can be found here.
If your children cannot attend contact, you should discuss and agree alternative arrangements with the other parent. The Family Court have made it clear that if a Child Arrangements Order cannot be followed to the letter, they expect alternative arrangements to be made to establish and maintain regular contact between the children and the other parent. The best way to deal with this is for both parents to agree arrangements. It may be that you agree alternative arrangements such as daily video-chats or perhaps you agree that once your self-isolation period has ended, you swap so that your children stay with the other parent for 2 weeks. Contact should be maintained as much as possible.
However, if you have genuine concerns that the other parent will not abide by the government’s rules, then the first step will be to speak to them. Tell them your concerns and explain why you feel the way you do. If the other parent does not alleviate your concerns and is not taking the Stay at Home rules seriously, and you are genuinely worried about your children’s health and safety, you may need to consider alternative arrangements. That being said, the current situation is not an excuse to refuse contact and you should discuss all alternative arrangements with the other parent before making any decisions.
When discussing possible adjustments you should put yourself in the other parent’s shoes. It may be that the other parent is concerned for themselves or a member of their household, as they may be part of the ‘vulnerable’ group. Do not act rashly, even if you are dubious about their reasons for suggesting adjustments. Do not escalate the situation by going to the other parent’s home and demanding to see your children. If you do this, you will not only be making an already stressful situation much worse, you could also be reprimanded by the police and could receive a fine for failing to abide by the government requirements.
Court orders are meant to be stuck to, however the current government requirements represent a unique exception to this rule. If it is evident that you cannot stick to the court order, then the court will not punish you for agreeing sensible adjustments with the other parent. If you are not able to come to an agreement, then you need to use your own judgement as a parent to come to a practical solution. The court believes that although you may not be able to abide by the letter of the order, you should uphold the spirit of the order.
It is possible to apply to the court to enforce a Child Arrangements Order. If the application is successful, the court could order compensation for financial loss, unpaid work or a fine. However, in order to be successful, it not only needs to be the case that the other parent breached the order, but also that they did not have a reasonable excuse to do so. This is a big hurdle to overcome under normal circumstances, but given the current Public Health crisis, this hurdle has grown substantially. In fact, many of the reasons previously mentioned in this article would likely be considered a ‘reasonable excuse’. It is expected that the court will look at each parent’s actions and consider if they acted reasonably and sensibly in light of the official advice, the Stay at Home rules and the individual facts of the case. If a parent is genuinely concerned about the health and safety of their children or their household, or truly believe that the other parent will not abide by the Stay at Home rules, then they should not be concerned about an application for enforcement.
Finally, we leave you with our 5 ‘top tips’ for managing contact whilst abiding by the government’s rules:
- Communication is key – talk to the other parent about your concerns and keep them up to date on your children’s health and wellbeing.
- Be considerate – many people are scared for themselves and their loved ones, make sure you are being considerate of this and not just thinking about yourself.
- Be reasonable – the Stay at Home rules are not an excuse to prevent contact with the other parent, if your children can go to contact, then they should go. At the same time, do not turn up at the other parent’s home, demanding to see your children, as this will not help the situation and you could be reprimanded by the police.
- Get creative – there are so many ways in this day and age for you to maintain contact with your children. You could use video-chat and calls as well as sending each other video or photo updates of your day.
- Above all, remember that you are doing this for your children – contact is for the children, and their health and wellbeing is paramount. It is important that you work together to keep your children happy, safe and healthy.