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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