Since lockdown measures were first introduced in March 2020, the most frequently asked questions about the restrictions have concerned child arrangements. The introduction of the three-tier system in the UK and the second lockdown coming onto force in November 2020 has caused concern for parents and carers. Simran answers questions to provide clarity about the current rules.
My child has symptoms of Covid-19, there is a Child Arrangements Order in place and my child is due to spend time with the other parent this weekend, can he go?
Answer: The first thing to do is let the other parent know that your child is showing symptoms of Covid-19 and get a Covid test booked in. Your child will need to self-isolate until the results of the Covid test are received, as would you and everyone else within your household. It would be sensible for the child to not see the other parent during this period.
If the test is negative, everyone within your household, including your child, in most cases, can stop self-isolating and therefore your child can continue to spend time with the other parent in the usual way. If the test is positive, your child will need to self-isolate for at least 10 days and he will not be able to see the other parent during this time. Everyone else within your household will need to continue to self-isolate for 14 days.
During any period of self-isolation, it is sensible to arrange for the child to communicate with the non-resident parent in other ways, such as via video or telephone calls. Additional time between the child and other parent can also be agreed to take place after the isolation period has ended.
Our children move between my home and my ex-wife’s home. During the national lockdown due to commence on 05 November or any future national lockdown, would our children have to remain in one household, or can they continue to spend time at both our homes?
Answer: The government has confirmed that, as with the March lockdown, where parents are separated, children can continue to move between the homes of their parents. This includes spending time mixing with the different households indoors and overnight stays. This will note be a breach of the lockdown rules and does not impact on any support bubbles or childcare bubbles that you might additionally have in place. Therefore, your children can continue to move between your respective households, spend time indoors and outdoors and stay overnight.
It would be sensible for there to be a discussion between you and your ex-wife as to what happens in the event either of you (or persons in your household) need to self-isolate. In such circumstances it would be better for the children (if the children did not need to also self-isolate, for example if they had not spent time with the infected parent/within that household) to stay with the other parent during this period.
My home is in an area designated as Tier 1 and my child’s other parent lives in an area designated as Tier 3. Do I have to let my child spend time with the other parent even though the government says households cannot mix in a Tier 3 area?
Answer: Again, there is no explicit guidance on this however the law appears to suggest that the an exception to the rule of 6 and household’s mixing applies where parents are separated and the child is moving between households in order to spend time with both of their parents. You may find it helpful to read our related article about the impact of the three tier system on child arrangements, click here.
There is a Child Arrangements Order in force that directs the time our child spends with his father. I am concerned about our child spending time with his father as our child is vulnerable and his father lives in an area with a high Covid infection rate. Will I be in breach of the Child Arrangements Order if I stop contact from happening?
Answer: Throughout the pandemic an exception to the lockdown/tier rules has generally been that children can move between their parent’s home where their parents do not live in the same household. This suggests therefore that Child Arrangements Order should be followed in the usual way.
However, despite this exception, the courts have taken the view that the exception does not mean that children must move between households, only that this is allowed. As such the decision of whether to comply with a Child Arrangements Order in the current climate, is ultimately a decision for those with parental responsibility and it is possible to agree temporary variations to the Child Arrangements Order to account for changes in Covid infection rates, risk levels and government advice.
Where agreement cannot be reached by those with parental responsibility, the court has taken the view that if one parent is sufficiently concerned about complying with the Child Arrangements Order, then that parent can exercise their parental responsibility and unilaterally vary the arrangements to arrangements they consider safe. If thereafter, their actions are raised before the Family Court, the court will consider whether each parent acted reasonably. The court are clear that where arrangements are varied in this way, the spirit of the order must be followed, and alternative arrangements made to maintain regular contact between the child and the other parent including using remote means such as Zoom, Facetime and Whatsapp.
My ex-husband is refusing to let our children spend time with me because of the coronavirus restrictions. There are no court orders in place, and we have always been amicable about the arrangements and agreed them. I think he is just being difficult. Is there anything I can do?
Answer: If you have historically been able to agree the arrangements, then that is a good start. Try to understand and think about what concerns your ex-husband has and discuss with him what you can do to alleviate his concerns. This is about parenting together and ensuring that you continue to have time with your child, whilst ensuring that the rules are followed, and everyone’s safety is maintained.
You could also consider approaching a mediator, ideally one with a specialism in Family Law, who may be able to assist you to understand one another’s perspective and ideally help you both find solutions. Many mediators are now using remote means, such as Zoom calls, to hold their meetings and therefore the pandemic has not impacted on their ability to help you.
If mediation is unsuccessful, then you could seek a Child Arrangements Order from the courts but it would be a advisable for you to seek legal advice before doing so.
My ex is claiming our son is self-isolating and that I cannot see him for 14 days. I do not believe him. There is a Child Arrangements Order in force and he is in breach. Should I apply to the court to enforce the order?
Answer: A Child Arrangements Order is a legally binding order and therefore it is enforceable before the courts. If the court were to determine that your ex had breached the order and did not have a reasonable excuse for doing so, the court could impose upon them a period of community service, or in the most serious of cases, impose a fine and/or seize assets and/or a period of imprisonment (although such orders are very rare). The court is also able to very the existing Child Arrangements Order so that the child lives with the compliant parent and spends time with the non-compliant parents, although usually for this to happen there needs to be a number of breaches of the order.
However, a defence to a breach of a Child Arrangements Order is ‘reasonable excuse’ and therefore if your ex can show that they had a reasonable excuse for breaching the order the court would not impose any ‘punishment’. It is likely that the child having to self-isolate for a period of 14 days, in line with government guidance would be considered a ‘reasonable excuse’ for this purpose. It is also likely, that by the time the court comes around to determining your application, the 14 day isolation period will have concluded and you will, once again be spending time with your child in any event.
I would advise that a better option would be for you to propose alternative indirect means of communication during the 14 day self-isolation period such as frequent video calls. You could also try to agree to your spending some additional time with your child once the self-isolation period has concluded.
My ex has applied to the court for a Child Arrangements Order, how are the courts dealing with Covid-19 and will I have to wait until the pandemic is over before my case is heard?
Answer: The Family Courts have, for the most part, remained open and continue to hear cases. Most cases presently take place remotely, either by telephone or video, with in person hearings occurring less frequently. The court will notify you in advance of your hearing as to the arrangements for that hearing and you will usually have to email the court with your phone number and email address 48 hours before the hearing is due to take place.
During the hearing, you will need to make sure that you are alone and that no one else can hear what is being said. If the children are due to be with you, it would be advisable to make alternative arrangements for their care. If this is not possible, do try to sit in a separate room and ensure the children cannot see your screen, if they are taking place by video. It may be helpful to have a set of headphones handy to make sure the children cannot listen in. In some cases participants have found it helpful to sit in their car, as opposed to being in the house, so to limit the risk of distractions during the hearing.
If at any stage you cannot hear what is being said by the court or another party, or if your reception/internet connection is unstable, then please do tell the court. It is vital that you follow the proceedings and understand what is being said.
I need legal advice in relation to a separation and children matter, are your offices still open and can I see someone?
Answer: SA Law’s St Albans office has remained open throughout the Covid-19 pandemic and our solicitors are working hard to continue to advise and represent our clients on a multitude of matters as we would pre-covid.
In this unpredictable climate, we have taken the view that in most cases, it would be safer for both you and us, if meetings take place remotely. We have access to several different platforms which enable video meetings and therefore we can use one which best suits you. Where a face to face meeting is appropriate or preferable, we will discuss with you how this can be managed in a Covid secure way.
We are also able to arrange and support you through remote hearings before the court and between us, we have probably encountered and overcome every difficulty that remote hearings throw our way. We will hold your digital hand throughout the process.
We understand that family breakdowns and child arrangement disputes are stressful, upsetting and provoke a whole host of emotions. The impact of Covid-19 has only made things more difficult. However, we are here for you and will do what it takes to support you through the process and make things that little bit easier for you.
Should you wish to speak to our expert family law and divorce team about your situation please do not hesitate to get in touch.