Enforcement of Child Arrangement Orders and COVID-19

Deborah Marsh Deborah Marsh 25 June 2020

As we see the end of stay-at-home measures, the potential return to pre-COVID-19 child arrangements is likely to cause conflict between separated parents.

Where a parent has stopped contact they may feel the risk of COVID-19 has still not gone away, but for a parent denied interaction, they will want to see routines returning to normal.

Potential transitional measures face increasing the possibility of conflict on both sides.

Deborah Marsh, associate and collaborative lawyer in the Family Law team at Wake Smith discusses Child Arrangements Orders (CAO) and COVID-19.

“Common sense, pragmatism and goodwill have all needed to be applied over the last few months. Where court orders have been in place, parties should have endeavoured to adhere to them as far as is reasonably practicable.

“Whereas before issues might have arose about the late return of a child or last minute changes without good reason, these testing times have brought about different problems.

“Separation can cause high conflict and people caught in disputes, especially around children, can try to leverage situations to suit their goals.

“Unfortunately COVID-19 has been used as an excuse by some to frustrate contact and this will be looked upon dimly should such matters come before the Court.

“Under the current lockdown restrictions, a parent may have made a decision about contact because they believe that to continue with the arrangements would be against the Government’s advice and would expose their child or children, or another member of the household, to risk.

“If you believe your ex-partner has changed the ordered child arrangements unfairly, or hasn’t implemented sufficient alternative methods of contact for you to maintain a relationship with your child, then it is possible to make an enforcement application to the court.

“The family courts are still functioning and are currently dealing with hearings by video or telephone conference.”

Where does COVID-19 sit in the law of the land?

Deborah added: “Usually judges can make reasonable judgement on whether or not a singular event, such as a broken down car, will be a reasonable excuse preventing contact taking place.

“But it is considerably more difficult to assess the impact of the pandemic on contact arrangements, given its continuous and unprecedented impact and individual’s own circumstances.

“COVID-19 has many of the features of a force majeure event; it is an extraordinary event that is beyond the control of the parties but, applications to the Court where child arrangements have been unilaterally altered is specifically provided for in the Family Court’s Guidance (President’s Guidance On Compliance With Child Arrangement Orders).

“Reasonable excuse is where although one parent could comply, they have a good reason, specifically, a "reasonable excuse", for not doing so, such as a child falling ill and being taken to the doctors rather than to the other parent for contact.

“There will still be clear cases where COVID-19 prevents contact – where a child is required to self-isolate due to their own symptoms of COVID-19 or those of a household member. Here, it is not possible for contact to take place whilst complying with the law and the Government Guidance.

“The question to be asked here is whether the parent was able to allow contact to take place, despite COVID-19?

“The Court carries out its full analysis of the particular circumstances of each case and the welfare of that particular child or children.

“Applications can also be made for child arrangement orders where long standing or agreed child arrangements have similarly been unilaterally altered and for those unable to reach an agreement but, where there is no current order to enforce.”

For further advice on COVID-19 and children arrangements call Deborah Marsh at Wake Smith Solicitors on 0114 266 6660.

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