The end of stay-at-home measures and the potential return to pre-COVID-19 contact arrangements will likely cause conflict between separated parents. If one parent has decided to suspend contact, they may be reluctant to accept that the risk posed by COVID-19 has diminished. On the other side, for the parent who has been denied contact, such a situation will likely justify contact returning to normal arrangements. The prospect of transitional measures only increases the possibility of conflict.
The previous month has made clear that there will be a need for consistency and predictability in resolving these conflicts. This article will consider how COVID-19 should be treated by the courts to ensure a consistent approach. In doing so it will consider how COVID-19 functions as a “reasonable excuse” as a matter of law. It will then go on to suggest an approach to assessing this as part of applications to enforce a CAO.
The President’s Guidance and Enforcement
Although there is little case law on the principles to be applied in respect of “Acts of God,” the courts are well used to hearing this kind of argument. Parents will often argue that contact could not take place due to a child being unwell, their travel being disrupted, or some other uncontrollable element.
However, unlike the normal vicissitudes of life, COVID-19 has little to no point of comparison. Much remains unknown about the transmission, symptoms and risk of COVID-19. As a matter of fact and evidence, it is difficult to identify any commonly applicable “magnetic factors” that could guide the court’s analysis of risk. In any event, the nature of this risk will vary depending on the circumstances of each child or family. Whilst a judge can be reasonably expected to make a value judgement on whether or not a singular event, such as flat tyre, will stop contact taking place, it is considerably more difficult to assess the impact of COVID-19 on contact arrangements, given its continuous and unprecedented impact.
By necessity, arguments have focused on interpreting government guidance against the particular circumstances of the application. There is a clear risk of inconsistency and unpredictability in this approach. For practitioners, this translates into difficulty assessing the outcome of an application. For parents, this risks uncertainty, and even frustration, if they do not feel that the judge has fully considered their arguments. Short of a reported judgement on the correct interpretation of the guidelines, what can be done to ensure a consistent approach?
A suggested starting point is the President’s Guidance on Compliance with Child Arrangements Orders, dated 24 March 2020 and updated on 31 March 2020 1. Others have spoken at length about how to comply with that Guidance 2. This article focuses on paragraph 6, which provides that:
6. 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 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.
This clearly anticipates that the responses of both parents to COVID-19 will be scrutinised by the court. Further, in order for this to have meaning outside the context of existing proceedings, this scrutiny must be able to take place in response to a potential breach of a CAO. However, it is less clear how this operates in the context of an application for enforcement.
Reasonable Excuse or Force Majeure
FPR 2010 PD12B para 21.1 provides for a two-stage approach on any application for enforcement of a CAO. The court shall first consider whether the facts in relation to non-compliance are established, before considering the reason for any non-compliance. Both are questions of fact.
Attention is also drawn to the helpful comments of Munby LJ in Re L-W (Children)  (Enforcement and Committal: Contact); CPL v CH-W and others EWCA Civ 1253 . At paragraph 40, and in the context of 11J – 11N Children Act 1989, he says the following (emphasis added):
“I should add a few words about what is meant by “reasonable excuse”. Bearing in mind that a defendant is not in breach of a mandatory order, even if he has not done what the order required, if it was not within his power to do it, issues of force majeure are properly to be considered as going to questions of breach rather than reasonable excuse. So, for example, if a parent taking a child for contact is prevented from going on or is delayed by unforeseen and insuperable transport or weather problems – one thinks of the sudden and unexpected grounding of the nation’s airlines by volcanic ash – then there will be no breach. Reasonable excuse, in contrast, arises where, although it was within the power of the defendant to comply, he has some good reason, specifically, a “reasonable excuse”, for not doing so. A typical case might be where a child suddenly falls ill and the defendant, reasonably in the circumstances, takes the child to the doctor rather than going to contact.”
Although the above is in the context of an application for committal, it is suggested that the distinction is one of general application. Munby LJ clearly differentiates between force majeure on one hand, and reasonable excuse on the other. The former, if established, would operate to frustrate the order by preventing contact from occurring; this would be the case regardless of the actions of the parties. The latter, if established, acknowledges a breach, but justifies it in the circumstances.
In light of this, how is COVID-19 to be treated? COVID-19 has many of the features of a force majeure event; it is an extraordinary event that is beyond the control of the parties. If it is a force majeure event, then it will go to breach: this is to say that even if there was non-compliance, there would be no breach, as COVID-19 has prevented contact from taking place. Although this interpretation has the advantage of clarity and is arguably the safest approach, it is suggested that this is over simplistic for several reasons.
First, the Government Guidance is clear that “children under 18 can be moved between their parents’ homes to continue existing arrangements for access and contact.” It is a clear exception to the mandatory stay at home requirement; this is emphasised in paragraph 4 of the President’s Guidance. The clear implication is that, as far as contact arrangements are concerned, COVID-19 does not automatically prevent contact from taking place. If it were a force majeure event, then it would preclude contact taking place; however, in principle, contact is able to occur despite COVID-19.
Second, the tenor of the President’s Guidance suggests that it is possible for a parent to breach a CAO due to COVID-19; otherwise, it is difficult to see why the court would carry out the analysis that is described. If there was no breach, then any subsequent consideration of parental behaviour would exist in a vacuum. This analysis could still take place in the context of ongoing proceedings, with the court considering the issue as part of its section 1(3) Children Act 1989 analysis. However, as stated above, this would render it largely meaningless outside of that context. Given that this analysis is described as taking place “after the event,” it seems likely that it is intended to cover independent applications arising due to COVID-19.
Finally, treating COVID-19 as a force majeure event would risk limiting the court’s discretion. If COVID-19 is a force majeure event (per Re L-W above), then it precludes a breach of the CAO; where COVID-19 is successfully raised, there can be no breach. The court will effectively be limited in considering whether or not non-compliance has been established, i.e. whether or not the COVID-19 exception applies. Given the nationwide measures and COVID-19’s pandemic status it is difficult to see how it would not apply; little room would be left for the court to carry out any further analysis of risk. Whilst this approach would prioritise the risk of COVID-19 to the child’s health, the court’s opportunity to take other welfare matters (i.e. the child’s wishes and feelings, the benefits of direct contact, the importance of stability during the current period of uncertainty etc) would be limited in favour of the protective parent.
Therefore, instead of being treated as a force majeure event, this article suggests that COVID-19 should be analysed as a “reasonable excuse.”
A suggested approach
In line with this, the court would consider whether or not COVID-19 constitutes a reasonable excuse for any breach. The analysis described in the President’s Guidance would be applied to the parents’ reaction to COVID-19, treating it as a frustrating event. To paraphrase Hughes LJ in Re A (Abduction: Contempt)  EWCA Civ 1138, the question to be asked is whether the parent was able to allow contact to take place, despite COVID-19.
One possible disadvantage of this approach is that the court is required to assess COVID-19 in the particular circumstances of the application. As stated above, a lack of information on the nature and risk posed by the disease risks inconsistency. However, it is suggested that the court is accustomed to carrying out a similar process of analysis, including on limited information. Compared to the potential treatment of COVID-19 as a force majeure, the court is fully able to analyse the welfare issues arising from the application, in the context of whether or not a breach is justified against the potential risk caused by COVID-19.
Of course, there will still be exceptional cases where COVID-19 is a matter of force majeure; for example, where the child is required to self-isolate due to their own symptoms of COVID-19 or those of a household member. In this situation, it is not possible for contact to take place whilst complying with the law and the Government Guidance. However, those circumstances would likely constitute a reasonable excuse in their own right.
This is in line with the President’s Guidance, insofar as it allows the court to carry out its full analysis of the particular circumstances of the case. It echoes the implication that, where a parent unilaterally varies a CAO due to COVID-19, their actions in doing so will be scrutinised. However, by considering whether or not COVID-19 functions as a reasonable excuse in the circumstances, the focus is broader. Instead of considering whether COVID-19 is so serious a risk that the order could not be breached, the court is asked to consider whether or not the risk of COVID-19 justifies the breach that has implicitly occurred.
2 See Demystifying Guidance for Separated Parents in the COVID-19 Environment by Adrian Barnett-Thoung-Holland’s and “COVID 19 Lockdown: what this means for the separated parent” by June Venters QC.