Our International Family Law Team has been overwhelmed by requests of assistance by concerned parents living in different EU jurisdictions whose children are the subject of Child Arrangements Orders (CAO) made by the Family Courts in England and Wales during the current coronavirus crisis.

Annah Cheatam, Senior Associate in Legal Law Limited’s family law team in London, has recently been instructed by an Italian mother who has recently visited Italy with her son during the Easter holidays as provided for in the existing Child Arrangement Order.

She is now not willing to return home due to the deteriorating pandemic crisis in the UK and has real concerns about the child’s welfare and health risks in returning back to London. She is obviously concerned that the UK is in the middle of a public health crisis on an unprecedented scale which has not yet reached its peak.

Right or wrong, our client considers that it would be in the best interests of the child to remain with her in Italy and attend online educational classes whilst being looked after by our client and her parents (who are thankfully in excellent health).  She is also understandably concerned about her ability to meet the requirements of the existing court orders safely in the wholly unforeseen circumstances that now apply.

Unfortunately, the father does not consent to our client and her child remaining in Italy and has threatened to make an application to the International Child Abduction and Contact Unit (ICACU) for child abduction.

What happens in these cases?

Parental responsibility for a child who is the subject of a CAO made by the family court rests with the child’s parents and not with the court.

We would advise all parents with children overseas or in different parts of the country to consider that the court has an expectation that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.

Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the UK Government on 23 March ‘the (Stay at Home Rules) In addition to these rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales (PHE/PHW).

The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.  However, the government guidance issued alongside the Stay at Home Rules on 23 March deals specifically with child contact arrangements and it states: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”

This establishes an exception has been made in this respect to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes.

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 persons who are recognised as vulnerable individuals in one household or the other.

More generally, the best way to deal with these extraordinary times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. It is obvious that many people are very worried about coronavirus and the health of themselves, their children and their extended family. Even if one parent thinks it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.

Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so without the need of sanction from the court. It would be sensible for each parent to record such an agreement in a note, email or text message sent to and acknowledged by each other.

Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, 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 taking their own decision in this way is challenged by the other parent in the Family Court, the court is likely to access 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.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangement, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements available to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.