Easing of Covid 19 restrictions - How does this effect child Arrangement Orders in respect of contact with your children?
22nd May 2020
The easing by the government of the stay at home restrictions is likely to cause more conflict between separated parents, where one parent has suspended contact they may still be reluctant and resistant to the suggestion that the risk posed by COVID 19 has diminished and may therefore still be refusing to allow contact to take place between a child and his other parent.
Naturally, the parent who has been denied contact will be wanting contact arrangements to resume and return to normal and the transitional easing of lockdown requirements only serves to increase the potential for conflict between separated parents.
The question the courts face now is whether COVID 19 functions as a “reasonable excuse” as a matter of law to suspend contact between a child and one of their parents which has been ordered to take place by the court previously.
The Presidents Guidance
Whilst there is little case law on the principles to be applied to “Acts of God” the court is used to dealing with situations where contact does not take place for a variety of reasons such as due to a child being unwell, their travel being disrupted or some other uncontrollable event.
COVID 19, however, does not compare. It is an unprecedented situation the magnitude of which has never been experienced before.
Much remains unknown about the virus i.e, transmission, symptoms and risk and it is accepted that the nature of the risk will vary depending on the circumstances of each child and family.
So far, arguments have been focused on interpreting government guidance when considering each case. This means there is a risk of inconsistency in the court's approach to applications. This makes it difficult for legal advisors to advise their clients on the merits of an application.
For parents there is a risk they feel misunderstood by the court and this is particularly relevant where hearings are taking place by video or telephone conference calls.
The relevant paragraph of the guidance is:-
“6. Where parents do not agree to vary the arrangements set out in a Child Arrangement Order (CAO), but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.”
In other words, both parents responses and reactions to COVID 19 will be scrutinised by the court.
Is the denial of contact a reasonable excuse or is the Child Arrangement Order totally frustrated as a matter of law? That’s the legal question the court has to consider.
Reasonable excuse
Reasonable excuse is where although it is within the power of the parent with the child to comply, he/she has some good reason, specifically a reasonable excuse, not to do so. In this case, the court acknowledges a breach of the Child Arrangement Order but considers it is justified.
However, a Child Arrangement Order will be considered frustrated if the parent with the child is prevented from or is delayed by unforeseen and insuperable problems. If the court makes this finding, then there is no breach of the Child Arrangement Order and therefore no enforcement of the existing Child Arrangement Order will be ordered.
So, how should the court treat COVID 19 in respect of Child Arrangements Orders?
The court should consider whether COVID 19 is a reasonable excuse and therefore any breach of an order is justified. In doing so, the court will scrutinise each parents reaction to the COVID 19 situation. The court will then have to consider the level of risk of suspending contact versus the risks of COVID 19.
Generally speaking, I believe the court will consider, in most cases, that COVID 19 is a reasonable excuse for a breach of a Child Arrangement Order. However, there are instances where it will not, such as where the child is required to self-isolate duet to their own symptoms or those of a member of the child’s household. By law and complying with government guidance it is not possible for contact to take place and therefore it would not be considered by the court be a breach of an order.
The key question is whether or not the risk of COVID 19 justifies a breach of a Child Arrangement Order.
If you would like to discuss your individual circumstances, then please feel free to contact me here:
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