Children Act matters and the implications of the coronavirus outbreak

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The coronavirus outbreak is causing vast disruption to our everyday lives. It has impacted our work, our children’s schooling and even our personal movement.

The rapidly changing situation has even led to confusion amongst government officials about how the new recommendations are to be interpreted in the context of separated families.

On Monday 23 March 2020, the Prime Minister announced that people should only leave their homes in very limited circumstances. In an interview held a short time later, Michael Gove told parents that children cannot travel between separated parents’ homes because of the new COVID-19 restrictions. This advice was quickly retracted, and Mr Gove stated in the press and on his Twitter feed that children under the age of 18 can be moved between their parents’ homes.

New guidance issued on 24th March 2020 by the Rt. Hon. Sir Andrew McFarlane, a senior Judge and President of the Family Division, clarified the situation. The guidance states that:

  • Parental responsibility of a child who is subject of a CAO rests with the parents of the child, and not the Court. It is expected that parents will act safely and sensibly when making decisions about their child.
  • Parents must still abide by the ‘Rules on Staying at Home and Away from Others’, the rules of which also apply to a child.
  • Government guidelines state: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”. This is considered an exception to the mandatory requirement, but it does not mean the child should be moved. The decision is for the parents to decide based on their safe and sensible assessment of the situation.

The advice therefore means that, if you are subject to a Court Order for contact, the contact can go ahead in accordance with the Order. However, it does not, mean that children must be moved between homes. The full guidance is set out here.

Ultimately, the decision about whether a child should be moved between their parents’ homes is for the parents to make, having sensibly assessed the circumstances. This should include consideration of the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

If the contact can take place without risk, it should not be withheld on the basis of the COVID-19 restrictions on movement. It’s also possible that parents will be able to apply for enforcement of contact if it is stopped and Orders are breached. The consequences of an enforcement Order are unpaid work, fines and, rarely, a prison sentence.

Where there is no Order in place, contact can continue subject to the provisions set out above.

In some circumstances where children are in isolation, it’s possible for contact to continue, provided that the children remain in isolation with both parents and that there is no risk to the child or other vulnerable members of the household. However, this should be considered on a case by case basis.

Various organisations have provided helpful information to assist separated parents in these difficult times. Cafcass, in particular, has a wealth of information on its website.

For those families involved in ongoing Children Act proceedings, it is likely that there may be delays in respect of your cases. Whilst this may cause some worry, the Courts and Cafcass have taken measures to ensure that delays are kept to a minimum, wherever possible. Consequently, some cases are being dealt with remotely, with the parties and legal representatives attending by telephone, for example. Cafcass is also trying to use WhatsApp and FaceTime to conduct interviews with parents and children.

If you are in doubt about how the advice from the government applies to you, please feel free to get in touch.