Law during Lockdown: Child Arrangement Orders
6th May 2020
When the ‘Stay at Home’ rules were released by the Government, there were concerns as to how children would be able to spend time with both parents when they did not live in the same household.
The Stay at Home rules clearly address this concern and state: where parents or someone with parental responsibility do not live in the same household, children under 18 can be moved between their parents’ homes to continue existing arrangements for access and contact.
More detail was provided by the President of the Family Division, The Rt. Hon. Sir Andrew McFarlane on 24th March 2020.
What are Child Arrangement Orders?
Child Arrangement Orders (CAO) regulate who the child is to live, spend time and have contact with under s8 Children Act 1989. Replacing ‘residence’ and ‘contact’ orders, CAOs will be made with the welfare of the child being the paramount consideration.
Whilst there is a presumption that parental involvement will best reflect the child’s welfare, ‘involvement’ is to be liberally interpreted, to include non-direct forms of contact such as letters or emails.
For children who share residence between their two parents’ homes or have regular contact with the non-resident parent, the impact of Covid-19 and social distancing risks upsetting established arrangements.
It is therefore welcome that the Government guidance specifically provides for children to be able to continue moving between their parents’ homes in accordance with CAOs.
Practical difficulties with complying with CAOs during lockdown
However, the Government’s acknowledgement of the need to maintain contact with parents fails to address some of the issues that might arise.
Sir Andrew McFarlane in his Coronavirus Crisis Guidance lays out how parents might manage CAOs during the time of the Stay at Home rules:
- Parents are free to maintain the arrangements within the CAO where they have undertaken an assessment related to the risk of infection and safety of the child and others. For example, if both parents live alone, are not vulnerable and have a low chance of contracting the virus, it might be agreed that it is safe for current arrangements to remain in place.
- If parents agree that the risk of infection of safety of the child or others is such that the current CAO arrangements cannot continue, they can, acting together, exercise their parental responsibility to vary the arrangements in the CAO. For example, if one parent is a key worker and therefore more greatly exposed to the risk of infection, it might be agreed that it would be safest for them to not have personal contact with the child. Such cases would most likely involve putting in place other arrangements for contact, such as Skype or video calls.
- If parents cannot agree as to the arrangements of the CAO in light of Covid-19, the guidance specifies that the parent who is concerned with continuing the arrangements can exercise their parental responsibility and vary the arrangements under the CAO unilaterally. If this were the case, the expectation would still be for alternative arrangements to be put in place to allow continuation of contact between parent and child. Whilst it would be desirable for parents to agree on the best arrangements during this time, the ability for one parent to change the arrangements ensures that concerns over safety and health are met.
The guidance issued by Sir Andrew McFarlane is practical, useful and welcome in providing clarity as to what separated parents can do during this difficult time.
There do remain questions over particular CAO arrangements however. It is possible for a person other than the child’s parents to have parental responsibility and CAOs in place. For example, it is known for grandparents or wider family members to have CAOs for contact; given that the Government Stay at Home Rules specifically refer to ‘parents’, can it be assumed that these other parties cannot continue their existing arrangements?
Once the Stay at Home Rules are lifted or otherwise amended and arrangements under CAOs can resume as normal, it will be interesting to see if any cases arise as a result of one parent unilaterally varying the arrangements under a CAO, and how the court will deal with such disputes during a time of public health crisis.