Parents whose children are subject to the orders have been unsure what to do, given that children moving between households could exacerbate the spread of the virus.
Government guidance issued alongside the Stay at Home rules that children under 18 ‘can be moved between their parents’ homes’, Sir Andrew said. However, this exception did not mean that children ‘must be moved between homes’.
Parents, acting in agreement, are free to vary an order during this time, and it ‘would be sensible for each parent to record such an agreement in a note, email or text message sent to each other’.
Where parents disagree but one parent is concerned, 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.’
However, Sir Andrew said the courts would expect the child to keep in touch with the non-resident parent through video connection such as FaceTime, WhatsApp, Skype or Zoom, or by telephone.
‘The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child,’ he said. Parental responsibility ‘rests with the child’s parents and not with the court’.
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