Following the Prime Minister’s announcement of lockdown measures on 23 March 2020, separated parents and their children were left in the position of trying to negotiate a new and complicated landscape in which they were uncertain of their rights in relation to child visitation and other important matters.

However, even a close reading of the initial lockdown measures failed to provide much in the way of useful clarification. They told us that we were only allowed to leave our homes for the following reasons:

• Essential shopping, but as infrequently as possible.
• One form of exercise a day – to be carried out alone or with fellow household members only.
• To meet medical or care needs.
• For essential travel to and from work, if it is impossible to work from home.

As you can see, this summary of the key points held little to nothing in the way of guidance for what to do in the case of children of separated families who might normally move between homes. Such uncertainty had the potential to prove problematic for the children of separated families, particularly as routine is typically thought to be essential to their emotional and psychological wellbeing.

Updated guidance

Fortunately, on 24 March 2020, The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice issued Guidance on Compliance with Family Court Child Arrangement Orders during the Coronavirus Crisis. This clarified the situation for separated families as follows: if parents live in separate households, children under the age of 18 may be moved between the homes.

However, this does not mean that parents should move children between households regardless of circumstances – the risk of exposure to coronavirus should be considered thoroughly in any movement from the home. As such, Sir Andrew advised that parents make an assessment of:

• The child’s health
• The risks of infection, and
• Whether there are vulnerable individuals in either home.

Communication is key during social distancing

Child experts typically agree that there can be no substitute for positive communication between separated parents and this is especially so during the prevailing coronavirus pandemic.

For example, if you feel that the current arrangement for your children involves too much travel, particularly if it relies on public transport, co-parents should communicate to find a solution that reduces the travel burden – i.e. it may be sensible to increase the duration of stays so that the amount of time spent travelling is reduced.

If it proves impossible for scheduled visits to take place, parents could make arrangements to ensure regular contact with the absent parent via Face-Time, WhatsApp, Skype, Zoom, telephone or other similar methods.

In the event parents cannot agree on suitable child arrangements for contact, they may have to defer to the applicable Child Arrangement Order (CAO) from the court.

What if the Child Arrangement Order would break the social distancing rules?

Parents who feel that complying with a CAO will contravene the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23 March [‘the Stay at Home Rules’] can vary the terms of their CAO to account for social distancing, but, if possible, both parents should agree – Sir Andrew advised parents that it is important that they make a note recording any such agreed changes.

However, if the terms of a CAO are varied in the light of the Stay at Home rules, but the other parent does not agree, the Family Court will reserve the right to question any such decision and consider whether it was made in the best interests of the child, any vulnerable family members and, of course, if it was in line with the government’s Stay At Home orders.

If contact time is reduced for one parent, families should try to make the most of phone calls or video calls so that relationships can be maintained even during lockdown.

What if one parent is experiencing symptoms?

The government advises that if any member of a household experiences coronavirus symptoms, the whole household must self-isolate for 14 days. Once this self-isolation period is over, contact can resume as normal.

What if there is a vulnerable household member?

If there is a vulnerable member in one household, it makes sense for the other household to socially distance themselves, even if there are no symptoms, thereby reducing the risk of COVID-19 infection.

Oratto, helping you find support through challenging times

Being a parent is challenging even at the best of times, but co-parenting across separate households during the time of a global health pandemic is unchartered territory.

If you are going through a divorce or you are currently separated, Oratto can assist you in finding the best and most appropriate family law legal advice in relation to divorce and separation agreements, financial settlements on divorce and separation, and child arrangements on divorce and separation.