Parents Will Need to Apply Creative Flexibility Under Court Orders During COVID-19

Note: Information about the current coronavirus pandemic is evolving rapidly. Please refer to your lawyer or other legal practitioners in your area to answer your specific questions related to family law and the COVID-19 crisis.

A mother kisses her infant child on the cheek.

When a family experiences divorce or separation there is a seismic shift in their lives, most notably for children, who are suddenly thrust into a world where they have to experience not seeing at least one of their parents on a daily basis.

Maintaining a healthy relationship with both parents is the bedrock of the English Family Justice system. Where parents cannot agree on arrangements for their children, the court can intervene and make a Child Arrangements Order, regulating the time each parent spends with their children.

Enforcement procedures can be enacted if one of the parents does not comply with an order.

Every judicial decision made focuses on the best interests of the child, using a set of legal principles, but what should one do when a global pandemic like COVID-19 comes along and forces governments to close schools and orders the population to stay indoors?

Some parents with primary care of their children have been stopping or suspending court-ordered arrangements, sowing the seeds for conflict and causing confusion and anxiety for children. Some are offering Facetime, phone calls or WhatsApp as an alternative, but for the other parent, “distance contact” feels unnatural and breaks the bond that occurs from close contact with their children.

Fortunately, Sir Andrew MacFarlane, the President of the Family Division, has issued clear and helpful guidelines regarding compliance with court orders during the pandemic.

A link to the President's guidelines is set out in full at the end of this article.

The guidelines underpin the basic legal right of a child to retain a relationship with both parents. Therefore, it is expected that parents will follow the spirit of the child arrangement order. Nonetheless, the parent with primary care is permitted (if they feel they have good cause) to exercise their parental right to suspend direct contact, if they think that this is in the best interests of the child.

However, in such a situation that parent is encouraged to agree to alternative arrangements if direct contact cannot be facilitated.

Any dispute about whether a decision to suspend contact has been exercised appropriately can be challenged by an enforcement application by the other parent. Court hearings can still take place, but for the time being, hearings will be via video link or telephone conferencing and/or email.

There has always been a need for parents to be flexible in respect of arrangements for their children, post separation. During COVID-19 there will be a greater need for that flexibility. Parents will need to think "outside the box" in order to formulate creative solutions. This will be one of the greatest challenges separated parents will face in this unprecedented crisis.


Kenneth Clarke, Lacey Solicitors
Author's Bio:

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Kenneth Clarke is the elder statesman of our mediation team, with forty years’ experience as a family lawyer, and qualified as a mediator in 1996. Kenneth has been a key member of the Laceys mediation team since 2005, specialising in financial and children cases, with a particular interest and specialisation in high conflict cases.

Kenneth is also qualified to consult with children, a growing part of the mediation process. Always looking to expand the boundaries of mediation practice,  Kenneth brings a degree of gravitas, humour, understanding and empathy when he mediates with clients,  creating a positive environment in which clients work together to resolve their issues quickly and cost-effectively.

Out of office hours, Kenneth’s main passion is writing musical theatre. When he has time Kenneth also enjoys travel, especially cruising.