The impact of the COVID-19 pandemic raises many questions in relation to contact between children of separated parents. The House of Commons Library has 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.
Since the paper being written, the current local COVID alert levels (medium, high or very high) remain, although the rules in England are expected to change from 5th November with the likelihood of a nationwide lockdown.
Can children move between the homes of separated parents?
Under the rules there is an exception to the restrictions on meeting family and friends where the gathering is necessary “for the purposes of arranging for access to and contact between parents and children where the children do not live in the same household as their parents, or one of their parents”. Therefore, this establishes an exception to the mandatory “stay at home” requirement. Ultimately, however 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 to include 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 as set down in the Child Arrangements Order, 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 that the child has had close contact with somebody who has tested positive for coronavirus the adult must “secure so far as reasonable practical that the child self-isolates” for 14 days. Note that visiting a parent whom a child does not usually live with is not listed as a reason why a person self-isolating may leave the house.
How should parents comply with 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”.
Guidance from the President of the Family Division of the High Court states that parents, acting in agreement, are free to decide that the arrangements set out in a Child Arrangements Order should be temporarily varied. However, regarding situations where parents do not agree, the guidance states “where parents do not agree to vary the arrangements set out in the Child Arrangements Order but one parent is sufficiently concerned that complying with the arrangements would be against current public health England guidance, 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 light of the official advice and stay at home rules in place at the time, together with any specific evidence relating to the child or family.
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.