Child Arrangement Orders, Courts and Lockdown 

Published on 01 May, 2020 | Melanie Kalina

In the six weeks since the UK Prime Minister Boris Johnson imposed restrictions to prevent the further spread of the Coronavirus, our lives at home and at work continue to evolve.

Most of those people able to carry on with their professions have had to adjust to the task of working from home, sometimes juggling business requirements with the responsibilities of helping their families cope with the situation.

Of course, some individuals have found the process of adapting to the new situation more of a challenge than others.

Courts too have been obliged to be flexible in how they operate.

In the days which followed the publication of the so-called ‘Stay At Home Rules’, the Ministry of Justice moved swiftly to ensure that the Family Court could operate as normally as possible.

A key part in the process was the use of new technology to allow remote hearings and avoid the need for people to attend courts in person.

Moving to such a system would have required a transition lasting a much longer period of time but the reality presented by the Covid-19 outbreak has accelerated its adoption.

It has not been without its teething problems. After all, as the judiciary has freely acknowledged, holding remote hearings presents “recognised difficulties”.

That’s one reason why, as the health crisis has persisted, senior judges have issued regularly updated guidance to lawyers about how best to proceed.

One advisory of note was issued just over a week ago and has captured the attention of national news media.

It was drawn up by Mr Justice MacDonald and prioritised certain types of family law matters, setting out those cases which must be proceeded with, those which should be advanced and, finally, “work that the court will do its best to accommodate” (https://www.judiciary.uk/wp-content/uploads/2020/04/The-Remote-Access-Family-Court-Version-4-Final-16.04.20.pdf).

Whilst urgent applications in private law children cases – for instance, those relating to abduction or abuse – were included in the most urgent category, other issues, including the administration of Child Arrangement Orders, were placed in the third, less pressing group.

I should perhaps explain that a Child Arrangements Order is an order made by the court which stipulates where a child will live and with whom, as well as who a child can spend time with and for how long.

It is a feature of the lives of many parents whose relationships have, sadly, broken down.

The instruction of Mr Justice MacDonald was a very practical attempt to manage the workload of the Family Court in quite exceptional circumstances.

Yet, as I explained to Steve Doughty, the Social Affairs Correspondent of the Daily Mail, it has had an unintended consequence.

In recent weeks, we have dealt with a growing number of complaints about parents using concerns about transmission of the Coronavirus to unfairly refuse former partners time with their children.

That time is determined within a Child Arrangement Order which are, in some cases, not being fully complied with.

Such behaviour would normally result in a court intervening and carries the threat of sanctions, up to and including a custodial sentence.

The fact that such matters are unlikely to be resolved by the court service before the lockdown restrictions are eased, though, means that parents are denied the chance to continue to play a vital role in their child’s upbringing.

Furthermore, it presents the risk of relations between former partners deteriorating, something which isn’t good for parents or children alike.

A day after Boris Johnson announced the lockdown, the most senior family judge in the country – Sir Andrew McFarlane, the President of the Family Division of the High Court – published guidance about how parents in that kind of situation could do their best to maintain contact via smartphone apps or even telephone (https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/).

Those, however, are only temporary solutions, designed to effect a stability of sorts until matters can be explored more fully.

Sir Andrew’s communique did highlight how courts might then be able to retrospectively scrutinise disputes in which parents might not have acted “reasonably and sensibly”.

Nevertheless, it means that for the time being the ‘usual’ method of applying to court for enforcement is not readily available to address the situation and ease the kind of tensions which, for some families, make the current change to daily life even harder to come to terms with.

We are working collaboratively with other agencies to try and prevent a ‘stalemate’ as a result of the court’s prioritisation, and can continue to make referrals to mediation or use an arbitration service to resolve ongoing disputes.

Often, all it takes is a little creativity to manage the risks and challenges of lockdown so that children can continue to maintain their bond with both parents.