The Government’s advice is clear that where parents do not live in the same household, any children under the age of 18 can move between their parents’ home and that will not be a breach of the Government’s advice. Having said that, each case needs to be considered carefully as the circumstances of each child and family will differ and it is not as simple as using a broad brush approach as there may be genuine reasons as to why contact is being withheld. While the Government’s advice is unambiguous, common sense should be applied in each situation ensuring that the decisions you make are in the children’s best interest.
The President of the Family Division has very helpfully set out compliance advice for parents where a Child Arrangements Order (CAO) is in effect and the take away is:-
1 – Ultimately, the children’s parental responsibility lies not with the Court but with the parents and therefore you need to make the decision as to what is really in your children’s best interests.
2 – During these testing and unprecedented times, parents should act pragmatically when making decisions regarding the children’s living and contact arrangements with the other parent.
3 – While the Government’s advice is clear about children under 18 moving between their parents’ homes, it does not necessarily mean that the children must move. When exercising this exception, a sensible assessment of the circumstances should be made bearing in mind the children’s present health, the risk of infection and the presence of any vulnerable individuals in either homes.
4 – Communication is key during these difficult times. Parents should communicate their concerns to one another and should collectively discuss and decide what they believe is in the children’s best interests.
5 – Where parents mutually agree to exercise their parental responsibility and decide that a CAO should be momentarily varied then it would be prudent for each parent to make a clear and contemporaneous written note to record this.
6 – If there is a CAO in place, but one parent is afraid to comply with it as they are concerned of being in breach of the Government’s advice and the matter is litigated, a Family Court will take into account whether each parent acted reasonably and sensibly in the light of the Government’s advice together with any specific evidence relating to the children or family.
7 – In the event that contact cannot take place, a Family Court will expect alternative arrangements such as Face-Time, WhatsApp video call, Skype, Zoom or other video connection or, if that is not possible, by telephone, to be made to establish / maintain regular contact between the children and the other parent.
The above guidance can be used by parents even if there is not a CAO in place as fundamentally it shines light on effective co-parenting during this pandemic.
Ultimately, whether children are moved between their parents’ homes is a decision which the parents must make ensuring that the children’s best interests are the primary consideration – as well as the children’s present health, consider the benefits of a sense of their normal routine and consistency and whether temporarily ceasing contact with the other parent will break that security. Having said that, in the event that there is a CAO in effect and the current 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 children”. So it is time for parents to get creative and think of ways to keep your children safely in touch with the other parent.
Act sensibly, reasonably, safely and in your children’s best interests and you will find the answer as to whether your children should visit the other parent during this pandemic. If you are still unclear, please do not hesitate to contact the Family Department at Clarke & Son where either Mark Chapman or I can advise and assist you with your predicament. Call 01256 320555 or email email@example.com.
Family Law Solicitor