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Essential things you need to know as a separated parent during COVID lockdown 2.0 - Part 1: child arrangements

Here are some Q&As based on the lockdown 2.0 queries we have received regarding the impact of Coronavirus on separated families.

On 31 October 2020 Boris Johnson announced a second national lockdown to come into effect on Thursday 5 November. One week in, here are some Q&As based on the lockdown 2.0 queries we have received regarding the impact of coronavirus on separated families.

Can I still see my child if I am separated from the other parent?

Yes you can, unless you or the child(ren) are self-isolating for the 14-day period. Boris Johnson made the following statement at the Coronavirus press conference on 31 October 2020: “Single adult households can still form exclusive support bubbles with one other household, and children will still be able to move between homes if their parents are separated”.

What happens if my child is self-isolating?

If you are notified that your child has had close contact with somebody who has tested positive with coronavirus, then you must ensure, so far as reasonably practicable, that the child self-isolates for 14 days.

A person who is self-isolating cannot leave their home except for reasons set out at paragraph 2(3) of the regulations [The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020], for example, to seek medical assistance, but visiting a parent with whom a child was not living at the time they were notified to self-isolate is not listed as a reason why a child self-isolating may leave the house.

Has the guidance regarding separated parents changed since March 2020?

No, this guidance has not changed since March 2020. Government guidance issued alongside the Stay at Home Rules on 23 March 2020 said explicitly that “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This established an exception to the mandatory ‘stay at home’ requirement.

Government guidance confirms that from 5 November 2020, individuals cannot leave home without a reasonable excuse and one of these includes “for the purposes of arrangements for access to, and contact between, parents and a child where the child does not live in the same household as their parents or one of their parents”.

Does the guidance mean a child with separated parents must be moved between homes?

No. The President of the Family Division of the High Court, Sir Andrew McFarlane, noted on 24 March 2020 that the Government guidance does not mean that children must be moved between homes. The decision as to whether a child should move between homes is for the child’s parents to make after considering all of the circumstances including, but not limited to, the child’s current health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. The President’s guidance has not been updated since March 2020.

Can I go inside my ex-partner’s home when collecting my child?

Yes, you can mix indoors with the other parent to allow your child to move between homes.

How can I sort out contact arrangements?

The best way to deal with the arrangements would be to agree something with the other parent if you are able to. Rather than rejecting their concerns as unfounded, try and find out what their concerns are and see whether you can work together to come up with a practical solution. If you cannot agree matters between yourselves, you could try mediation, solicitor correspondence, arbitration or, as a last resort, an application to court.

What if we have a court order in place? Does it have to be followed to the letter?

If both parents agree that the arrangements as set out in the court order should still apply despite COVID, the court order should be followed.

If both parents agree that the arrangements under the court order should be temporarily varied during the COVID lockdown period, these should be agreed in writing and reviewed periodically. An email or text message exchange between you both that documents the variation will suffice.

If parents cannot agree the arrangements, for example if one parent wishes to vary them and the other does not, and out of court options have been explored, consideration should be given to making an application to court.

The court when considering any application will look at both parents’ conduct and attempts to agree the arrangements outside of proceedings to see whether they acted reasonably and sensibly in light of official government guidance in place at that time, together with any specific evidence relating to the child or family.

A warning notice is usually attached to a court order warning of the consequences of failing to comply with it. It usually says that if you breach the order the court may fine or imprison you for contempt of court, or may make an enforcement order or an order for financial compensation. Under section 11J of the Children Act, a court can decide not to make an enforcement order when somebody fails to comply with an order “if it is satisfied that the person had a reasonable excuse for failing to comply with the provision”. The burden of proof “lies on the person claiming to have had a reasonable excuse and the standard of proof is the balance of probabilities”. This means that the court must be satisfied that on the evidence, the occurrence of an event was more likely than not.   

Failure to comply with a child arrangements order is very serious and someone considering doing so on the basis they believe they have a “reasonable excuse” as set out above would be advised to seek legal advice before doing so.

If for any reason a child does not get to spend time with the other parent, that would have otherwise taken place but for COVID, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and other parent, for example, remote contact via FaceTime, WhatsApp, Skype, Zoom or if that isn’t possible, by telephone.

The President of the Family Division, Sir Andrew McFarlane, has made it clear that where Coronavirus affects contact arrangements, the spirit of any court order should be delivered by making safe alternative arrangements for a child.

What if I have concerns about my child catching COVID?

These concerns should be discussed with the other parent as soon as possible to see whether childcare arrangements can be agreed between you.

The Government has confirmed that scientific advice suggests there is a moderate to high degree of confidence that the susceptibility to clinical disease of younger children aged under 13 is generally lower than for adults, unless considered clinically extremely vulnerable (“high risk”).

Schools and Early Years providers have followed local and national guidance and have put their own measures in place to reduce risks where possible. You cannot eliminate the risk of a child catching COVID altogether but it is a question of taking the necessary precautions and balancing those risks with the harm that would be suffered if the child is not permitted to spend time with their other parent. If you are unsure what to do, you should contact your GP, your child’s school or take legal advice.

Can I take my child on holiday within the UK or abroad?

You cannot leave home for holidays or stay overnight away from your main home unless permitted by law and the exceptions are narrow. This means you cannot stay in a second home or caravan if you own one or stay with anyone you do not live with or with whom you are in a support bubble.

Some hotels are still open as guest accommodation is permitted to remain open for specific reasons set out in law which includes, but is not limited to, essential workers, where guests cannot return to their main residence, they are using the hotel as their main residence, they are self-isolating or would otherwise be made homeless as a result of the accommodation closing.

What if my child is in care? Can I still see them?

The local authority must allow reasonable contact between a child and their parents/guardian/those with parental responsibility where they are in local authority care as per section 34 of the Children Act 1989 unless they believe it should be halted to safeguard or promote the child’s welfare.

The Government’s guidance for children’s social care states that they expect court orders for children in care to be met but recognises there are situations where this isn’t possible, for example if members of households are isolating or taking precautions due to clinical vulnerability.

Every family will be assessed on a case by case basis taking into account Government guidance and the needs of the child. Under the current restrictions for social distancing there are exemptions from the two-person limit 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.

Where face-to-face contact cannot take place, it will need to take place remotely instead and children should be reassured the situation is temporary. Where children are so young that remote contact would not be beneficial local authorities are being asked to work with families to ensure safe face-to-face contact takes place.

I see my child at a contact centre, does lockdown affect this?

The National Association of Child Contact Centres said in June 2020 that they were recommending individual centres make independent decisions about whether they felt able to re-open and if they do not feel fully prepared or opening would contravene local advice, they should not reopen.

The association issued guidance on 2 November to say that it expects contact centres to remain open after 5 November if they can take appropriate measures to ensure they are safe. If your usual contact centre has closed you should contact the association or phone 0845 4500 280 or email to see what other centres in your area may be open during lockdown.

There are also charities and groups who can offer advice such as the Children and Family Court Advisory and Support Service (“CAFCASS”), Gingerbread and Families need Fathers to name but a few.

As set out above the President of the Family Division has said where coronavirus restrictions cause the contact arrangements to be varied, safe alternative arrangements should be made such as indirect contact by video or telephone.

How do support bubbles come into play?

Adults who live alone, even if you have carers visit to provide care, or single parents with children under 18 as at 12 June 2020, known as a ‘single-adult household’ can, if they wish, form a support bubble with another household of any size. Once in a support bubble the Government guidance says you can think of yourself as being in a single household with people from the other household, meaning you can have close contact with that household as if they were members of your own household which includes overnight stays without needing to stay two meters apart and visiting outdoor public places together. Once you make a support bubble you cannot change who is in your bubble.

If you live with other adults including carers, then you can form a support bubble with one single-adult household which is not part of a support bubble with anyone else.

If you share custody of your child with someone you do not live with, your options are as follows:

  • If you’re a single-adult household, you can form a support bubble with another household other than the one that includes your child’s other parent. The household you bubble up with can be of any size.
  • If you’re not a single adult household, so if you live with a partner for example, you can form a support bubble with a single-adult household other than the one that includes your child’s other parent.

What about childcare bubbles - are these the same or different?

You may be able to form a childcare bubble but these are distinct from support bubbles. If you are eligible to form a childcare bubble, you can have two bubbles: one childcare bubble and one support bubble with different households, so your childcare bubble might include a grandparent and your support bubble might include a friend for example. Childcare bubbles should be used exclusively for the purposes of childcare. You cannot meet socially together at the same time with people in your childcare bubble and support bubble.

So how do you know if you’re eligible? If your child is aged 13 or under, you will be eligible to form a childcare bubble to provide informal childcare in either or both of the homes from the two households or outdoors. Informal childcare means it is unpaid and unregistered and it applies where the child’s parent or regular carer is not present to look after them, for example, if they have to go to work. Once all the children in a household are aged 14 years or above, the childcare bubble must cease.

Can you change your childcare bubble or are you stuck with your original choice, as with the support bubble?

From 5 November 2020 if you start a childcare bubble with another household you cannot change it to a different household. If you formed a childcare bubble prior to 5 November 2020 and wished to change it, you would have been permitted to stop that bubble and start the new bubble from 5 November 2020.

What if I need to go to work but I can’t form a childcare bubble with another household?

Then you can use your support bubble for childcare. So if you’re a single-adult household, you can form a support bubble with another household other than the one that includes your child’s other parent. The household you bubble up with can be of any size. Or, if you’re not a single adult household, if you live with a partner for example, you can form a support bubble with a single-adult household other than the one that includes your child’s other parent. You will still be able to use the services of registered childcare providers and in-home providers such as nannies.

If I issue an application to court will it be heard?

Guidance has been issued that, where possible, hearings may take place remotely either by telephone or video but courts remain open for face-to-face hearings and measures have been put into place to ensure that judges, legal professionals, staff and those attending can maintain effective social distancing. The court will make you aware if your hearing will be a remote hearing or not.

If court proceedings become necessary is it possible to secure an urgent court hearing?

The courts are presently prioritising the most serious cases where children are at risk of significant harm which includes cases involving emergency protection orders, interim care orders, secure accommodation orders and deprivation of liberty authorisation. The courts will then prioritise urgent private law children applications along with child abduction orders, domestic abuse family injunctions, female genital mutilation and forced marriage protection orders and urgent divorce applications or applications for decree absolute alongside court of protection work.

If the court does not consider your matter to be urgent, it will be dealt with after these more urgent cases have been heard. Even if it is not possible for your case to be heard on an urgent basis it is often wise to issue your application sooner rather than later so that your case will be towards the front of any queue as and when the court begins to work through any backlog.

Why have I not heard from the court yet?

Many courts have experienced delays in processing applications and hearing cases, so they are working through a backlog of work with a delay of up to 18 weeks in some courts. You can contact the court you submitted your application to if you want to find out more information.

Has the court changed how they deal with applications?

The Government has agreed that courts can make changes to their usual processes to try and help parents as quickly as possible, but not all courts will follow these changes.

When the court receives your application they will consider whether it relates only to the current pandemic, for example if you previously had agreed arrangements prior to COVID but are now unable to agree the arrangements whilst following government guidance. CAFCASS suggests that children should maintain their usual routine of spending time with each parent unless there are justified medical/self-isolation issues. Some courts will send you a letter which explains that CAFCASS will contact you first to discuss your application and concerns and they will complete the usual safeguarding checks on both parents. If they believe your issues are related solely to the pandemic they will try to work with you to come to a suitable arrangement as it may be several months before your court hearing can take place.

CAFCASS are involved in my case. Are they still open?

CAFCASS are open for business and are making use of remote video technology and in-person visits to speak with children. The judgment about whether in-person or remote work is in the best interests of the child will be made by the Family Court Adviser who will ensure the rationale is understood by the child and their family/carer.

I’m meant to be attending a SPIP, is it still going ahead?

You can attend the Separated Parents Information Programme either privately or for free by way of a referral from CAFCASS. There are many providers who are offering the programmes remotely via video. If you’re unsure whether your SPIP is taking place you can contact CAFCASS or your local provider based on your location.

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