The National Lockdown and Child Arrangements FAQ

Although we have now said goodbye to the difficult year that was 2020 and moved into 2021, a year I am sure we can all agree, we hope will be considerably better than the last, we have unfortunately not yet seen the back of Coronavirus.

As of 05 January 2021, England has entered a third National Lockdown and inevitably this will once again cause confusion and frustration to parents in relation to child arrangements. In this article I hope to answer some difficulties which may arise because of the national lockdown.


We are separated parents, our children are due to stay with their father this weekend, can they still go and stay with him now that we are in a lockdown?

The government guidance is clear in that you must not leave your home except where you have a “reasonable excuse” to do so. The guidance goes on to specify that a “reasonable excuse” includes contact between parents and children where they live apart. As such, your children can continue to spend time with their father in the usual way and are able to move between both of your homes including staying overnight. More information about what is classed as a “reasonable excuse” can be found at gov.uk.

I live 100 miles away from my children’s home with their father. I travel to see them on alternate weekends. Can I still do this?

There is presently no guidance or law which limits the distance you can travel to have contact with your children if you live apart and therefore you are able to continue to see them in the usual way. However, before travelling you should give some thought to where you will spend your time with the children. The guidance allows for you to mix indoors with the other parent to allow your child to move between homes and therefore it could be that your time with the children would need to be spent at their father’s home (see gov.uk for more detail). If not, your time with them would likely need to take place outside and take the form of exercise, which the guidance suggests should be limited to once per day. You might want to consider alterative arrangements such as the children spending time at your home or indirect contact such as video calls.

If you are travelling with the children or to see the children, it may be sensible to keep a copy of any emails, text messages or court orders to hand which confirm the child arrangements that are agreed should you be stopped and need to explain your movements. You should also limit the need to stop at service stations and other places where the virus could be spread.

My mother, the children’s grandmother, helps us with childcare whilst we are working. Can she continue to help now we are in a national lockdown?

The government guidance suggests that where one household has children aged under 14, they can link with another household to form a “Childcare Bubble” which would then allow your mother to continue to provide informal (unpaid) childcare for the children. You and your mother can only be part of one Childcare Bubble and therefore she cannot provide informal childcare for another household and you cannot seek informal childcare from anyone else. If either of you wish to change your Childcare Bubble, you will need to wait a period of 10 days between the previous bubble ending and the new bubble starting. You also cannot use your Childcare Bubble as a means of socialising with one another.

The childcare itself can take place in either household or public place and therefore she could care for them at her home, your home or take them to school (in the event you are a key worker). Your mother can also care for the children overnight.

In the event your mother lives alone, she can also additionally form a Support Bubble. Further information can be found at gov.uk.

I am due to see my children this weekend, but the children’s mother is claiming to have symptoms and is being tested for Coronavirus and she is saying I cannot see the children. I do not want to miss out on my time with them, can I still see them?

On this occasion we need to trust that the children’s mother does have symptoms and as such the usual Stay at Home Guidance ceases to apply and instead the Guidance for Households with Possible Coronavirus Infection applies (see further detail via gov.uk here). This Guidance makes it clear that anyone with symptoms and anyone within their household, regardless of whether they have symptoms, must stay at home and self-isolate until test results are received. Your children are considered as part of their mother’s household as they presently reside there and therefore will need to self-isolate. If you have come into close contact with your children recently you may also need to self-isolate.

If the test results are negative, then the household can stop isolating and you can spend time with your children in the usual way.

If the test results are positive, then the children’s mother will need to self-isolate for a period of 10 full days from when she first experienced symptoms. The children will also need to self-isolate for the same 10 day period. As suggested above, if you have had recent contact with your children, your household may also need to self-isolate for this period.

During this 10-day period of self-isolation, the children’s mother and the children must not leave their home. There is a limited set of exceptions to this, but these do not include spending time with children who live in a separate household. As such, during this period the children cannot and must not see you. Instead, and although it is not the same as direct contact, you might wish to consider arranging to have frequent video calls with the children during this period so that you continue to remain in contact with them.

The children’s mother is planning to travel abroad for work, and she wants to take the children with her, I do not want them to go. Can she do this?

From a coronavirus perspective, the answer is no. The requirement to stay at home applies to each person individually, including children, and therefore each person must have a “reasonable excuse” for leaving their home, if they are to do so. The guidance suggests that international travel is permitted where you are required to do so for work therefore, the children’s mother can travel abroad. However, there appears to be no “reasonable excuse” for the children to travel and therefore they must not do so.

In addition to this, if you share parental responsibility for the children and there is no “live with” order granted in favour of the children’s mother, then she should seek your consent to travel internationally with the children in any event.

You may need to make an urgent application to the court for a Prohibited Steps Order to prevent the children from travelling abroad, if you cannot reach an agreement with the children’s mother.

I have supervised contact with my children, does the national lockdown mean my contact stops?

If you are already having supervised contact in a contact centre, you should contact the centre and obtain specific advice from them.

Generally speaking, a reasonable excuse for not staying at home as directed by the guidance, is for contact with children who live in a separate household. This allows you to leave your home to spend time with your children. Contact centres can stay open under the rules as they are considered to be a support group that has to be delivered in person. However, it will be up to the specific contact centre to determine what services it is able to offer safely and whilst remaining within the rules. More information can be found at nacc.org .

If your contact is being supervised by a third party, it is unlikely that this can continue to take place. You might want to consider moving the contact into a contact centre for this period. In addition to this some centres are now offering virtual supervision, and this might also be appropriate depending on your circumstances.

We are foster carers and the children we are caring for are due to have contact with their birth parents and grandparents, is this allowed?

The Stay at Home Guidance confirms that a “reasonable excuse” for leaving your home is to allow contact between birth parents and children in care, as well as between siblings in care (see gov.uk guidance here). This means that the children’s parents can continue to have contact with the children in the usual way. However, the grandparents pose a difficulty as it is not a “reasonable excuse” for them to leave their home to spend time with their grandchildren and therefore if they were to do so, this would be a breach of the guidelines and there could be repercussions.

My ex has a holiday home in the countryside that he wants to take the children to for the weekend. Is this allowed?

No, the guidance is clear that staying in a second home is not allowed. Therefore, your ex should not travel with your children.

The children and I live with an extremely vulnerable person, there is a Child Arrangements Order in place, what do I do?

The President of the Family Court back at the start of the pandemic recognised that although the guidance allowed parents to continue to spend time with children who live in a separate household in the usual way, that there will be other circumstances at play which prevent this from happening. The President expressed that where a parent unilaterally chose to vary the child arrangements on account of the Coronavirus, their actions would be scrutinised by the court to determine if they behaved reasonably and it would expect for alternative means of contact to be put in place.

You are in a difficult situation and it would be sensible in the first instance for you to speak with the other parent to discuss your concerns and see if you can find a way for contact to take place which does not put the extremely vulnerable person at risk. If you do take the view that the contact cannot take place, then you should consider alternative means of maintaining the relationship between the children and the other parent such as frequent video contact. If an agreement cannot be reached, it would be sensible for you to make an application to the court to vary the order.

These are extremely difficult circumstances for us all to be in and it is important that we take a pragmatic approach to child arrangements. There are a number of factors that will need to be considered and balanced at all times including the government guidance, the risk of Coronavirus spreading through your household and the extent to which your child might be responsible for passing the virus between households. Parents need to work together and to understand one another’s predicaments in order to reach solutions which might not work for both parents, but which will do for this, hopefully short, period of time, before we see a semblance of normal life return.

Specific questions about your situation? Seek expert legal advice

We hope that this article provides a good base level of what you can do if the lockdown restrictions affect you and we appreciate that it can be a very difficult and frustrating time for parents and children alike.

Please note, each situation is different and we recommend instructing a solicitor should you wish for questions to be answered specifically about your situation. We are unable to provide free legal advice.

CONTACT SIMRAN

If you would like more information or advice relating to this article or a Family law matter, please do not hesitate to contact Simran Gupta on 01727 798065.

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Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.