The impact of the COVID-19 pandemic continues to raise many questions in relation to contact between children of separated parents. The House of Commons Library recently published a helpful paper providing information in response to some key questions to assist parents who may be unsure of what they are and are not allowed to do.
Can children move between the homes of separated parents?
Local restriction tier 1-4 guidance for England from 2 December 2020 states that exemptions from gathering limits in all tiers include for the purposes of “arrangements where children do not live in the same household as both of their parents or guardians”. This includes moving between tiers for the same purpose.
The guidance does not mean that children must move between homes, the decision being one for parents to take after assessing their circumstances. Therefore the decision as to whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
Where, either as a result of parental agreement, or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent the Courts would expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the stay at home rules. For example remotely by Facetime, WhatsApp, Skype, Zoom or other video connection, or if that is not possible by telephone.
What about children who are self-isolating?
If an adult is notified (other than via the NHS Covid-19 smartphone app) that their child has had close contact with somebody who has tested positive for coronavirus, the adult must “secure, so far as reasonably practicable, that the child self-isolates” for ten days.
A person subject to the self-isolation requirement must not leave their home except for a list of reasons specified in paragraph 2(3) of the regulations – e.g. where it is necessary to seek medical assistance. Visiting a parent whom a child was not living with at the time they were notified of the requirement to self-isolate is not specifically listed as a reason why a child self-isolating may leave the house.
If a child has been notified to self-isolate by NHS Test and Trace the guidance is less clear and appears to suggest that where possible, the parents or guardians should arrange for a child to remain at the same address during their period of self-isolation unless impracticable. Many different scenarios can apply depending on different family situations, however the key message is for the child’s parents to make a sensible assessment of the particular circumstances.
How should parents comply with a Child Arrangements Order detailing contact?
A Child Arrangements Order is an Order regulating where a child lives and when they spend time with each parent. Whenever the Court makes a Child Arrangements Order a “Warning Notice” is attached to the Order warning of the consequences of failing to comply with it. A Warning Notice states that if someone breaches a Child Arrangements Order “the Court may fine or imprison them for contempt of court or may make an enforcement order or an order for financial compensation”. However, under Section 11 J of the Children Act 1989 a Court can decide to not make an Enforcement Order when somebody fails to comply “if it is satisfied that the person had a reasonable excuse for failing to comply with the provision”.
The guidance states that parents, acting in agreement, are free to decide that the arrangements set out in a child arrangements order should be temporarily varied. Regarding situations where parents do not agree, the guidance states:
“Where parents do not agree to vary the arrangements set out in a [child arrangements order], but one parent is sufficiently concerned that complying with the [child arrangements order] arrangements would be against current [Public Health England] 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.
Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone”.
The key message is “where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child”.
In conclusion, where coronavirus restrictions cause arrangements to be varied, the spirit of the agreement/Order should nevertheless be delivered by making safe alternative arrangements for the child. If it is not possible to maintain the child’s routine due to illness or self-isolation, or due to risk to people who ordinarily support contact, the Courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent.
The paper is regularly updated and can be found here.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice about Child Arrangements Orders, or advice generally about family law, please do contact a member of our family & relationships team.
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