Lewis Chatten of our Family Department considers contact arrangements and enforcement orders for separated parents in light of the current health emergency.
The UK is facing the largest health emergency it has faced in decades. During this unprecedented time, it has left lot of separated parents concerned about contact arrangements, whether it be facilitating contact with a non-resident parent or the non-resident parent worried about when or how they will next see their child.
At the time of writing this article the most recent advice from the Government has been for everyone to remain at home unless it is ‘absolutely necessary’ to travel. Parks, pubs, restaurants, theatres and various other organisations have been closed in order to reduce the spread of coronavirus.
There has been no changes to the law in respect of child arrangements for contact and it is currently uncertain just how long we will be advised to remain at home and social distance.
Those without existing orders
It is presumed in law that parental input into a child’s life will always be in the child’s best welfare interests unless that assumption is rebutted by serious safeguarding. If a resident parent is not willing to facilitate contact between the child and the other parent without a good reason then the primary position is that the resident parent is not acting in the child’s best interests which is the Court’s paramount consideration. This remains the law even in the current circumstances.
CAFCASS and the government have been clear that whilst advised not to travel unnecessarily, a child travelling between the homes of their parents is permitted travel. Contact arrangements should continue as previously agreed but it is important to consider risks, especially if one of the parents live with someone who is considered “high risk” should they contract the virus.
These are unprecedented times and now more than ever parents must take a creative approach to contact arrangements. CAFCASS have published helpful guidance on the subject and encourages parents to consider video calling contact as an alternative where perhaps travelling between two different homes is not practical nor considered to be in the child’s best interests.
If a resident parent is unwilling to support/facilitate video calling contact in a situation where travelling between two homes simply is not practical, then they will leave themselves open to harsh criticism from the Court should contact arrangements not be agreed and an application is thereafter made. Whilst the approach of the Court remains uncertain, it is encouraged that parents come to an agreement in a state of national emergency. The Court will expect parents to work together during these uncertain times in order to act in the children’s best interests.
If contact arrangements are not agreed and contact is withheld unreasonably then an application can still be made for a Child Arrangements Order. The Court continue to hear applications for Child Arrangements Orders and measures have been put into place to hear those applications remotely by way of video conferencing and telephone hearings.
Those with an existing child arrangements order
As mentioned above, the law in respect of Child Arrangements Orders has not changed and parents must comply with orders. At the time of writing this article, the government have specifically permitted a child travelling between the homes of their parents and there will be an expectation that those arrangements will continue unless agreed otherwise between the parents.
If an agreement is made between the parents to vary the Child Arrangements Order during these uncertain times, then it is good practice to ensure that the agreement is in writing either through text or through email. If arrangements do not fall back in line with the Order once there is no longer a national health emergency, then these messages can be used as evidence in any enforcement proceedings that are brought or any attempt to vary the existing Child Arrangements Order.
If the order has broken down, then the law allows enforcement proceedings to be brought by the parent who alleges the breach. A parent who wishes to enforce an existing Child Arrangements Order must prove “beyond reasonable doubt” that there has been a breach of the order. This is a much higher standard of proof than is usually required in family proceedings, the usual standard being “on the balance of probabilities.”
Where the Court finds that there has been a breach, or in the situation where the other parent accepts that they have broken the Order, they can still rely on the “reasonable excuse” defence. In order to make out the defence the other parent must prove that they had a reasonable excuse to break the order on the balance of probabilities. It is not yet clear whether parents will be able to rely on the current circumstances as a reasonable excuse. As has always been the case, each application will be considered on a case by case merit and considered by the Court on its facts and merits.
We can help
These are uncertain times and now more than ever it is essential that parents put aside any of their personal issues in order to act in the child’s best interests. The current situation is changing daily and parents should ensure they liaise constructively, reviewing the situation daily.
In light of the current circumstances, enforcement proceedings have become more complex and parents who allege a breach of the order should seek legal advice. At Charles Strachan Solicitors we are still offering our very competitive fixed fee appointments by telephone whilst our office remains closed.
We also offer a legal aid service, and should you wish to discuss your eligibility please do not hesitate to contact a member of our dedicated family team by calling 0121 704 3311 or emailing firstname.lastname@example.org