Consultant solicitor Shashi Sachdeva, in our leading Family Law team, explains the impact on separated families and child arrangements of a second national lockdown in England
As we find ourselves in a second national lockdown, what effect will this have on separated families and the ability of children to move between two households?
The Government made it clear on announcing the first lockdown that: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” (per Government guidance issued alongside the Stay at Home Rules on 23 March 2020).
This created an exception for children of separated parents from the ‘stay at home’ rule. Whilst this guidance has yet to be updated in relation to the current lockdown, we can likely expect the same principles to apply.
The Children and Family Court Advisory and Support Service (Cafcass) also issued guidance in March 2020, reminding us that parental responsibility rests with parents and not with the Court; and stating that ‘the expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.’
This means that parents should act in the best interests of their children when making decisions about where they should spend time. A lockdown is not a reason in and of itself for children not to see a parent. If there are health concerns, parents should in the first instance try and resolve these in consultation with each other in a way which is not harmful to the child. Parents should always keep in mind a child’s best interests – in uncertain times children will benefit from having a familiar routine and both parents’ support.
Seek advice if intending to vary the terms of a Court Order
A Court order governing the arrangements for your children can be varied by agreement between the parties in certain circumstances. This is a tricky legal area and you should take legal advice if you are intending to vary the terms of an order.
Cafcass guidance tells us that where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current lockdown requirements, 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.
Where a child does not get to spend time with the other parent as set out in a Court Order, the Family courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely via video connection or, if that is not possible, by telephone.
A great deal of progress was made by the Courts during the first lock down to ensure court hearings still take place. Most hearings are currently taking place remotely either via video link or by telephone and it is expected that this will continue for some time.
A changeable situation – plan ahead
The Chancellor has announced that the “Furlough Scheme” introduced earlier this year will be extended until 31 March 2021. It has been suggested that this could potentially mean the second lockdown, which began on 5 November 2020 and is due to end on 2 December 2020, may be extended.
It is therefore a good idea to consider and plan your arrangements for children in your case well in advance, and seek legal advice if unsure of your options. We are here to help, so please get in touch with a member of our specialist Family Law team for advice.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
