Further to my blog of yesterday, there have been further updates on the subject of how the current social distancing rules should be applied to children moving between the houses of separated parents.
Michael Gove initially stated that children shouldn't be moving in this way but this view was called into question given the updates that had been given to the Cabinet Office advice. He later clarified saying, 'I wasn’t clear enough earlier, apologies. To confirm – while children should not normally be moving between households, we recognise that this may be necessary when children who are under 18 move between separate parents. This is permissible and has been made clear in the guidance.'
Whilst he corrected himself to say such movement was permissible he still only said, if it was necessary. Many parents with child arrangements orders or informal agreements about shared care or otherwise were left questioning what this meant in practice. The President of the Family Division and Head of Family Justice, Andrew Mcfarlane, has added some further commentary in a statement, intended to offer guidance about compliance with Child Arrangements Orders, yesterday. Whilst he accepted that the stay at home rules offered an exception to the mandatory requirements in that children can be moved between households, he went on to say it does not mean that they must be moved.
He said, "the decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other." Here is a link to the full commentary.
Whilst his advice was for parents to communicate and agree practical solutions, he also accepted that many parents would have different views and levels of worry about the COVID-19 situation. In practice each case will be different and how the Court will interpret the actions of parents in this crisis will no doubt depend on their individual circumstances. The President impressed the need for indirect contact to be arranged in situations where direct contact has been varied or suspended. I will continue to update as the Courts interpret this in practice.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.