The new 3-tier system of restrictions has raised concern and questions from parents about contact and arrangements for children who regularly move between households due to their parents being separated. Family Solicitor Simran Gupta explores how the new tier one, two and three potentially affect contact arrangements between parents and children living in two separate households.
The 3-tier system that has been introduced by the UK government aims to manage the spread of Covid-19 through winter 2020 and beyond.
The Covid tiers have inevitably caused confusion in relation to Child Arrangements and how those arrangements will apply across tiers (for example where one parents live separately and their homes are classed in different tiers) and also specifically where parents are both located within the higher tiers.
There are three tiers which presently apply across England:
- Medium - where for our purpose’s, groups of up to 6 from different households can socialise indoors or outdoors.
- High - where for our purpose’s, groups of up to 6 from different households can socialise outdoors only and there can be no mixing of households indoors (with the exception of support bubbles and childcare bubbles).
- Very High - where for our purpose’s, groups of up to 6 from different households cannot socialise indoors or outdoors (with the exception of support bubbles and childcare bubbles).
Helpfully, across all three tiers, the government guidance suggests that an exception to the limits on groups of six or more people meeting, is for arrangements for contact between parents and children where children do not live in the same household as one or both of their parents.
This suggests that where a child’s parents live separately, regardless of the tier you are in, the child can continue to move between households, even if this results in a group of more than 6 adults and children meeting i.e. if Parent A’s household is made up of 2 adults and 3 children and Parent A’s two children from a prior relationship were to visit, this is allowed under the rules despite this being a gathering of 7 people.
Unhelpfully, there is no express guidance which confirms whether a similar exception applies to where the families meet, for example, where children do not live in the same household as one of their parents, are they still able to see that parent indoors, in areas designated as High or Very High. The legislation itself does seem to suggest that this exception exists, and it would be logical for it to do so. However, it is yet to be seen whether the police would look to fine an individual for breaking the rules in these circumstances and we can only hope that guidance on this issue will follow.
It may also be helpful to note the guidance of the President of the Family Division which was released back in March 2020;
“Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
The President was clear that it was ultimately a matter for the parents to decide whether a child should move between households and where the decision was made for the child not to move between households, then the spirit of the order would still need to be followed.
In the absence of any further guidance, it is likely to remain a matter for those with parental responsibility to decide whether it is safe for the child to move between parent’s households.
Again there is no new guidance on this however, based on the guidance given in March 2020, where a child is self-isolating, they should not move between households, even for the purposes of contact with parents who do not live in their household.
In these circumstances, the parent with whom the child is self-isolating should follow the spirit of any Child Arrangements Order and consider the use of other methods of indirect contact during the period of self-isolation, such as the use of video calls.
There are a few anomalies which we have come across, for example, the Tiers refer to households however, where a ‘shared lives with order’ is in place, it could be argued that the child lives with and shares a household with each parent individually and therefore it could be argued that the child should be free to move between these households regardless of the restrictions that apply to that Tier.
Another anomaly relates to the tier that applies in Essex. Generally speaking Essex is in the High tier, however Southend and Thurrock remain in the Medium tier as they are run by unitary authorities. It is therefore advisable to check what tier the relevant postcode is in, if it is near Southend or Thurrock, to establish which rules apply to that specific area.
Another anomaly has arisen where children are being sent home from school to self-isolate after another child in their class or year has been found to be Covid positive. In this situation it appears that other children in their household might still be allowed to go to school and/or children from a different household (and school) might be allowed to continue to move between their parent’s households, therefore coming into contact with the child that is self-isolating. There is no clear guidance in this situation, and this has led to parents receiving conflicting advice from local authorities, schools and Public Health England.
Given the everchanging situation, it seems sensible for parents to, where possible, discuss what arrangements should apply to their specific situation taking account of all the various factors involved and keeping the best interests of the child at the heart of any such discussions. Where an agreement cannot be reached it will always be sensible to take legal advice before stopping contact, especially in circumstances where there is a Child Arrangements Order in place.