After more than two months of strict lockdown measures as result of the Covid-19 global pandemic, it appears the Government are moving towards a gradual ease of the restrictions in movement, in order to allow families to start seeing their loved ones again, albeit in small numbers. Separated parents who may have previously been prevented from seeing their child will now understandably start questioning whether the “usual” child arrangements can resume.
The rules on child contact remain that children under 18 can be moved between their parents’ homes, unless there is a valid concern in respect of the child’s health, the risk of infection, or the presence of a vulnerable individual in either household. This is regardless of the restrictions as to numbers of family members who can meet in public or private garden spaces.
What if I am being unreasonably prevented from seeing my child?
Whether the child arrangements have been informally agreed by the parents or are contained within a formal court Child Arrangements Order (CAO), parents should first try to reach an agreement between them. If that fails, they may then need to attempt to do so with the assistance of their solicitor or a mediator. It will naturally help if both parents are willing to be flexible and cooperative with the arrangements wherever possible, keeping the needs and welfare of their child as their main focus.
But what happens if you can’t agree?
If an agreement cannot be reached, and you do not already have a court CAO in place, you have the option to apply to the Court under section 8 of the Children Act 1989 (CA 1989). An order can be made regulating with who the child spends time with and for how long.
The Court’s paramount consideration in any such application will always be the welfare of the child (per s1(1) CA 1989) and an order will only be made after careful deliberation of the welfare checklist (per s1(3) CA 1989), including (but not limited to), “any harm which the child has suffered or is at risk of suffering and the capability of each parent of meeting the child’s needs”.
Existing Child Arrangements Orders
If you already have a court CAO in place, you may be left with no option but to apply to the court to enforce the terms of that order. The President of the Family Division, Sir Andrew McFarlane has issued guidance on compliance with CAOs in the Family Court where that course of action has been taken, summarised below:
The Court will assess “whether each parent has acted reasonably and sensibly”, taking into consideration the official advice and “Stay Alert” guidance in place at the time, and any specific evidence relating to the child and family.
Where the court is satisfied beyond reasonable doubt that a parent has failed to comply with a CAO, it has a wide range of powers, including:
- referring the parents to a separated parenting information programme or mediation
- variation of the CAO, which could include a more defined order or reconsideration of the child's living or contact arrangements
- an enforcement order or suspended enforcement order under section 11J CA 1989
- an order for compensation for financial loss under section 11O CA 1989
- committal to prison
- a fine
In any case, if you are not spending time with your child, the Court will expect alternative arrangements to be made to maintain regular contact with the child such as Zoom, Facetime, or telephone.
As with any issue arising out of child contact, parents will need to be seen as keeping a child’s wellbeing at the forefront of the dispute and, in ordinary circumstances, there will always be a presumption that this should include regular contact with both parents. The courts will inevitably take a dim view of any parent seeking to take unfair advantage of the Covid-19 pandemic (or, indeed, any other unforeseen or other such circumstance arising) for their own motive, purely as a means of detriment to the other parent. This should be avoided or the parent responsible may find themselves subject to unexpected consequences put upon them by the court for contact going forward.
If you require any advice on this subject, or any other aspect of family law, our team of specialist lawyers offer a free consultation in order to assist you in determining the most appropriate course of action for you and your child.
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