Note to reader: This article, prepared by Louise Desrosiers, of Travers Thorp Alberga, a member of the Family Bar in the Cayman Islands, is intended to help parents get up to date with the changes in Regulations that may affect them and their children. It is not intended as government or legal advice and should the reader require advice about their own situation it is suggested they seek independent legal advice or visit the Government’s website at www.gov.ky/coronavirus .
Under the Public Health (Prevention, Control and Suppression of COVID-19) Regulations (‘the Regulations’) it not permitted for a person, including children, to be outside their home for any purpose other than those exempted.
On Friday 3 April, Attorney General Samuel Bulgin announced that persons undertaking travel to facilitate child contact arrangements would be exempt from the shelter in place regulations.
The announcement of the Attorney General comes amid concerns that parents moving children between households are in breach of the Regulations. Conversely, parents refusing to move children between households were in breach of Court Orders and (no less importantly for the child) private arrangements. The announcement is timely as Easter and summer is fast approaching and there are often extended arrangements over holiday periods.
On 6 April, the wording of the new amendment was published, adding a new category of ‘essential travel’ as:
in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children; AND …“parent” includes a step-parent, a person who has parental responsibility for a child or a person who has care of a child.”.
These are Amendments to Regulation 8 ‘shelter in place’. The amendments do not apply to the ‘curfew’. However, the spirit of the amendment might suggest that as long as children remain inside the home of the other parent, overnight contact can be facilitated during curfew.
The Amendment covers all persons with parental responsibility, as many children live with family members other than their parents. If contact is facilitated by another family member without parental responsibility, this is not covered.
The following general advice, echoing the President of the Family Division and Head of Family Justice in England and Wales, is intended to help parents decide what to do if they are faced with children who are a member of two households:
- Whilst the Amendment establishes an exemption, it does not mean children must move between homes. The decision is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s health, risk of infection and the presence of vulnerable individuals in the household(s).
- Parents should communicate with each other about their worries and make suggestions for practical solutions. Many people are worried about Coronavirus and the health of themselves and their family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried.
- Parents may be able, acting in agreement, to exercise their parental responsibility and temporarily vary arrangements. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
- Where parents do not agree, but one parent is sufficiently concerned that complying with the arrangements would be against current government advice, that parent may exercise their parental responsibility and vary the arrangement to one they consider safe. If governed by a Court Order, they should request a variation to that Order. If, after the event, the actions of a parent acting on their own are questioned by the other parent, the court will likely look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Regulations in place at that time, together with any specific evidence relating to family.
- Where a child does not get to spend time with the other parent, it is likely the the Court will expect alternative arrangements to be made, for example via the internet or telephone.
The circumstances of each child and family will differ, so advice is in the most general form. If you are worried about any of the issues outlined in this article and how they might affect your family, please contact a legal professional who can help with tailored advice about your situation.