COVID-19 and parenting orders – what does this mean for schools?

COVID-19 and parenting orders – what does this mean for schools?

24 August 2020 Authored by: Craig Turvey   |   Topics: Education and training, Family law

Schools are not required to comply with or enforce parenting orders. However, they are frequently caught in the crossfire between separated parents who want their child’s school to side with their position. COVID-19 does not void existing parenting orders but may mean that parents need to negotiate new arrangements. While it is not the school’s role to police parenting orders, staff should be aware that the family law courts have a ‘COVID-19 list’ for urgent family law matters and parents should be encouraged to obtain independent legal advice.

Are schools bound by parenting orders?

The parties to a parenting order are legally bound to comply with it. Typically, these are the child’s parents, but can sometimes include other family members, such as grandparents, who may have intervened in any court proceedings.

Schools are not parties to parenting orders and they are therefore not required to comply with, or enforce, them. The only limitation is that a person who is not a party to a parenting order can contravene one if they:

• intentionally prevent compliance with the order by a person who is bound by it

• aid or abet a contravention of the order by a person who is bound by it.

In our experience, it is most uncommon for a person who is not a party to an order to be found to have contravened it. We are not aware of any teachers or staff being punished for having contravened a parenting order during their employment.

If schools are not bound by parenting orders, why care about them?

While a school may not be bound by parenting orders, the child’s parents are; and our experience is that parents will often put pressure on the school to ‘police’ the terms of their order.

Parents making such a request should be advised, preferably in writing:

  • that it is not the role of the school to enforce the terms of parenting orders
  • to obtain independent family law advice.

However, if:

  • the school is aware a parenting order is in place
  • the parenting order specifically prohibits a parent from attending the child’s school without the other parent’s consent (it is rare for a parenting order to be this prescriptive and the school might need to obtain its own legal advice about such an order)
  • the prohibited parent tries to collect or remove the child from school and staff become aware of this

the school should contact the other parent to confirm whether they agree that the prohibited parent may collect the child from school. If the parent does not agree, or staff cannot get in contact with them, the prohibited parent should be asked to leave without collecting the child.

If the prohibited parent refuses to leave without the child, or takes the child anyway, staff should notify the other parent as soon as possible. The police should also be called if staff consider the child is at risk of harm.

What is the impact of COVID-19 on parenting orders?

COVID-19 does not affect the validity or enforceability of existing parenting orders. Many parents over the past few months have queried whether they still need to comply with their parenting order given the effect of COVID-19. The answer is, typically, yes, except where the child is at risk of exposure to COVID-19 if they are placed in the other parent’s care.

Obviously, parents may wildly disagree about this issue. Sadly, in some cases we have experienced, parents have used alleged COVID-19 concerns to stop their child spending time with the other parent, despite the child being at no more risk of exposure than in their own care.

It is the responsibility of the parents to vary any existing parenting orders if they consider this necessary due to COVID-19. There are many family dispute resolution options available for parents. Alternatively, the family law courts have established a ‘COVID-19 list’ to deal with urgent family law matters arising from the impact of coronavirus .

Summary of information for schools

While schools are not required to comply with or enforce parenting orders, parents will sometimes expect their child’s school to do so. COVID-19 does not void existing parenting orders despite what some parents may believe.

If parents raise these issues, the school should respond in writing (even if this is a follow up to a verbal discussion) to advise that the following:

  • It is not the role or responsibility of the school to enforce parenting orders. That is a private matter for parents.
  • If parents have COVID-19 concerns relating to when their child is in the care of the other parent, it is their responsibility to obtain family law advice about their options. It is not the role of the school to intervene (save for schools’ obligations regarding reporting of exposure to COVID-19 cases etc.).
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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.