Child Contact Conundrums During the Covid Pandemic

The family law landscape is becoming ever more confusing with parents (and even Boris Johnson), seeming to be unsure whether continuing child contact arrangements in accordance with a court order is against the Government regulations and restrictions. Here we take a look at what is in fact a breach of a court made contact order, and how best to ensure a positive relationship with both parents in the current climate.

What are the current rules?

The previous “tier system” was designed to limit the number of cases in a particular area. The guidance for separated parents whilst the tier system was in place was that parents should still enable contact to take place, even across regions. This was on the basis that neither parent, nor their children were displaying symptoms, isolating, or awaiting testing. This exception remains under the new rules as England enters into a new “lockdown”. The guidance has in fact, been in place since March with Sir Andrew McFarlane, President of the Family Division, releasing the following guidance:-,

“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”.

He also stated:

[Parents and children may meet] “for the purposes of arrangements 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.”

The Prime Minister recently summarised the guidance as follows:

“children will still be able to move between homes if their parents are separated.”

What should I do if I, or my child has symptoms?

In short, you should follow the Government advice and get tested as soon as possible. Inform the other parent that you are awaiting testing. If you or your child test positive for the virus, there is no exception to the rule of self-isolation – face to face contact should not take place. Instead, you and the child’s other parent, should discuss and agree what other form of contact could take place during isolation, for example, video call, Skype, WhatsApp or telephone contact. The President of the Family Division has given further guidance and states, “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.”

It is often a good idea to have an advance plan between parents in place should this happen.

If a contingency plan cannot be agreed and the other parent tries to insist on contact, you should consider taking advice from a solicitor. When considering an application to enforce a contact order, the court will consider whether there is a “reasonable excuse” for contact not to take place. If you are able to clearly show that either you or your child are exhibiting symptoms, awaiting testing or have tested positive, you are not going to be found to be in breach of the order. It is important to keep a record of any discussions with the other parent and whether you have suggested any offers of alternative contact if you think this may be an issue.

What if the other parent lives far away?

It does not matter how far away the other parent lives providing, as above, the child and parent are not demonstrating any symptoms. Contact remains an exception to the need to travel.

What can I do if I am worried about the risk to my child, or myself from the other parent?

If you have concerns that the other parent may not be following Public Health England Advice, or that parent works in a field where there is an increased level of risk of exposure, you may wish to consider a temporary variation of the current court order.  The President’s guidance is that, if both parents agree to this, they may temporarily vary the agreements between them. It is advisable that this be done in writing so that you have a record of what has been said and agreed. It would be sensible to seek legal advice on how best to draft any changes.

If you are not in agreement, and feel strongly that the other parent presents a significant risk either to yourself, or your child (either by not complying with the advice of Public Health England, or due to their work/place of work) it is advisable to seek advice and, if possible, arrange mediation between you so you may discuss your concerns. If this is unsuccessful or the other parent refuses to engage in mediation you may wish to make an application to the court to vary the arrangements before acting unilaterally. It is sensible to speak to a specialist family solicitor who can advise you on the merits of an application. They may also be able to suggest any alternative or protective measures you could put in place.

Parents are having to make difficult decisions at present and the court will need to finely balance the risks. It is important that, prior to any application, you consider all steps you can take to mitigate any risks.

My partner has stopped contact stating I pose a risk. What do I do?

If you have contact under a court order and the other parent unilaterally stops this contact, you will need to consider if they have a reasonable excuse or reason for doing so. Seeking advice from a family lawyer is essential to ensure that contact in some form is restarted as soon as possible. If it is not, you may need to issue an urgent application at Court. The vast majority of Family Courts are continuing to operate, albeit largely remotely, by video or telephone and applications for enforcement are being heard regularly at present.

Whilst the safeguarding of the child will be the court’s paramount consideration, the court have a delicate balancing act in circumstances where one parent may be vulnerable. You should consider if there is anything you can do to re-assure the other parent that contact is safe, be it that you practice additional distancing at work or regular cleaning and use of PPE. If your partner remains adamant you pose a risk, it is best to take advice on whether the court may or may not consider this to be the case.

The court will expect, unless there are very good reasons (such as domestic abuse allegations), for parents to discuss any worries they have and to communicate with the other as to how best to find a practical solution to minimise any risks of harm to the child and both the parents. It is always worth exploring with a family solicitor whether alternate dispute resolution services may help resolve any concerns and enable discussions regarding additional protections you could agree to be put in place.

Here to Help

If you need advice or assistance then please contact our Partner and Head of Divorce and Family, Tracey Dargan, on 01992 300333.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.