The head of the High Court's Family Division has issued valuable guidance on what should happen where a child's parents are separated and there is a clash between (a) what an order or arrangement between them says about contact or where the child should be living at any given time and (b) stay at home rules. If an order is in force then this guidance will apply whether it was made in the High Court or Family Court in England and Wales.
These are the key points-
- Where parents do not live in the same household, children under 18 can - not must- be moved between their parents' homes and this is an exception to the stay at home rule.
- Where parents agree that what an order says should be temporarily changed, that is fine but it will be advisable for this agreement to be recorded in a note, email or text message sent to each other.
- Where parents cannot agree a temporary change but one of them is sufficiently concerned that complying with the order or usual arrangements would be against public health advice then they can change what would normally happen to something they consider to be safe. If any challenge by an aggrieved parent to what has been done by the other parent is later made in court then the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and stay at home rules together with any specific evidence relating to the child or the family.
- Where, because of the above, a parent misses out on time with their child then alternative arrangements should be made within the stay at home rules - for example, remote contact by Face-Time, Skype, Zoom etc or, if that is not possible. by telephone.
Quite obviously, this guidance should not be used as a weapon or unilateral action taken out of vengeance or for some improper motive. The child's best interests must always be paramount and misuse of the guidance could in due course have serious repercussions for the parent in the wrong. In the most urgent cases, an application to the court cannot be excluded but, for child cases, only a remote hearing is likely at the moment and the court will not be pleased by trivial disputes when it is subject to the intense pressures that the virus has presented it with.