Contact during the Coronavirus pandemic: A reluctance from the Courts?

Coronavirus continues to affect all areas of our lives. In particular, there appears to be increasing issues in relation to the exercise of parental responsibility when it comes to child contact. What should parents do when one parent does not consider that contact is safe and for the child/children to move between parents’ homes?

This question appears to be the subject of applications which are being made to the local family courts. One Court considered this matter without a hearing and made an order which sent out a clear message.

Within the order, the judge explicitly set out as recitals the Guidance on Compliance with Family Court Child Arrangement Orders issued by the President of the Family Division, Sir Andrew McFarlane on 24 March 2020. As a reminder, this guidance emphasises that ‘parental responsibility lies with child’s parents and not the court’ and that ‘the expectation is that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child’. Children can be moved between homes, but ‘it does not, however, mean that children must be moved between homes.’

As a result of the guidance, the Court gave one further recital, considering that those who have parental responsibility for a child will exercise it in a way that is to comply with the Stay at Home guidance and will pay attention to the exception of children moving between parents’ homes.

It was then ordered that the hearing which had been currently listed for a future date was ‘cancelled’ (as opposed to simply adjourned). Cafcass were still required to do their safeguarding checks, which needed to include whether a hearing was needed or whether alternative methods of dispute resolution could be considered.

The order also gave provision for parties to pursue the original application if they wished, but with the requirement that they explain why the application needed to be heard by the Court and the steps taken to try and achieve some agreement as expected by the Guidance. If no application was made, then the matter would be dismissed with no order made.

This case indicates that the Courts are currently reluctant to get involved and adjudicate upon matters relating to contact within the Coronavirus pandemic. The current stance of the Court appears to be that those with parental responsibility should be exercising that responsibility in a sensible way in line with the current guidance and is encouraging parents to work together to reach a sensible agreement that is suitable for them and in the best interests of their children.