Coronavirus: Separated families and contact with children in the UK

Since we were first locked down in March 2020, we have addressed many questions from separated parents who are concerned about how to manage the impact of the pandemic on their current child contact arrangements. Parents are concerned about the risk of COVID-19 infection but also worried that preventing the other parent from having contact would be a breach of their court order.

Please note that we are providing general guidelines, help and advice within this blog and it does not constitute legal advice. Specialist advice should be sought in individual circumstances; contact us for assistance.

Current guidance from the Family Division:

The President of the Family Division released updated guidance on 18^th January 2021 entitled ‘Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders’ (CAO).

What is a child arrangements order?

In England and Wales, a child arrangements order is an order regulating where a child lives and when they spend time with each parent.

Can children currently move between the homes of separated parents?

The National Lockdown: Stay at Home guidance for England was published on 4 January 2021 and we are all now aware of the advice regarding staying at home, social distancing and avoiding large gatherings.

The guidance states that individuals cannot leave home without a “reasonable excuse” to do so. A “reasonable excuse” includes continuing “existing arrangements for contact between parents and children where they live apart”.

Unless you or your child has an underlying health condition or other vulnerability, transporting them from one home to the other for pre-agreed contact arrangements would usually be a legitimate journey (based on the current government guidelines).

This does not mean that the children must be moved between homes. The decision whether a child is to move between their parent’s 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.

What about children who have to self-isolate (England)?

If the child has to self-isolate or if they have tested positive, there are limited reasons for which they can leave the home e.g. where it is necessary to seek medical assistance. Moving between their parent’s homes, or visiting a parent they do not live with, is not specifically listed. In November 2020 the Department of Health and Social Care stated that where possible the parents should arrange for a child to remain at the same address whilst they self isolate.  

The guidance provides that where COVID-19 restrictions cause the letter of a court order to be varied, the “spirit” of the order should nevertheless be delivered by making safe alternative contact arrangements for the child. If it is not possible to maintain the child’s routine due to illness or self-isolation, or non-availability of, or risk to, people who ordinarily support contact, the courts will expect alternative contact arrangements to be made to establish and maintain regular contact between the child and the other parent, for example, remotely – by FaceTime, WhatsApp, Skype, Zoom or other video connection or if that is not possible, by telephone.

How should parents comply with court orders for contact (UK)?

During lockdown, parents have been concerned about failing to comply with court orders. The guidance states that parents can agree and are free to decide that the arrangements set out in a child arrangements order can be varied – this would not be legally binding, and the original order would still be in effect. If you and your child’s other parent make new temporary arrangements about child contact, you should record such an agreement in a note, email or text message sent to each other and to their legal representative (if they have one).

What if you and your child’s other parent cannot agree?

Whilst parents are encouraged to reach an agreement between themselves and without the need for the family court to become involved, there will be occasions when this is not possible, and one parent will not agree with the other. We can advise in relation to the application process and also represent you at any hearings; get in touch.

If an agreement cannot be reached, will you have to go to court?

During the pandemic, most hearings are taking place remotely and generally by telephone or by video call, unless the Court states otherwise. It is therefore unlikely that during lockdown you will have to go before the judge in person.

Some practical tips for managing contact during lockdown

It is important to try and maintain the relationship between the non-resident parent and their children. Here are some practical suggestions about how to deal with this difficult situation:

• Remember the priority is that your children continue to be safe, loved and are able to maintain a good relationship with you both.
• Communication is important – keep it regular and clear. If it is difficult to talk directly, then communicate by text or by email or if it is not safe to do so (for example if there’s been a history of domestic abuse) then consider using a trusted third party to help you.
• If it is not possible for the non-resident parent to see the children directly, suggest an alternative such as FaceTime, WhatsApp or Zoom calls. These can be great ways to catch up and can be used to read stories, sing and play together. With older children you could also consider a watch party – where you gather online to watch a movie, commenting and ‘reacting’ in real time.
• If possible, try to agree in advance what will happen in the event either of you tests positive with coronavirus (COVID-19) or has symptoms, and how the non-resident parent will have contact with the children. If there is a court order in place, it is unlikely to be seen as a breach to come up with alternative arrangements, provided they are sensibly managed.
• Think carefully about maintaining a two-metre distance from other people, carrying hand sanitiser and tissues, and thoroughly washing hands on arrival home.
• If you have a legitimate concern that your health and/or the health of the children will be compromised by direct contact, again you should try to arrange some other form contact such as FaceTime, WhatsApp or Zoom calls or if those are not possible then a telephone call.
• Be extra vigilant when making sure that the child(ren) cannot hear discussions about court cases or any legal disputes you may have with your child’s other parent. This is particularly relevant now as they are at home and there may be court hearings by Skype/telephone conference.

About the author:

Belinda Hunter is a Chartered Legal Executive in Eric Robinson’s Family Department and her areas of practice include all aspects of private family work, including financial proceedings and arrangements for children. She is based at the Winchester Office where she can be contacted on 01962 679414 or by email: belinda.hunter@ericrobinson.co.uk.