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Essential things you need to know as a separated parent during COVID lockdown 3.0: child arrangements

We answer your frequently asked questions on how lockdown affects separated families.

On 4 January 2021 the Prime Minister announced the third national lockdown which came into effect on 5 January 2021. Here is a reminder of how lockdown affects 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. This is because it counts as a ‘reasonable excuse’ to leave home which are identified as ‘exceptions’ under the COVID-19 regulations. As confirmed in paragraph 2(13) of Schedule 3A Part 1 of The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 (as amended by the updated regulations referenced above) and the ‘Stay at Home’ government guidance above, exception 9 is that it is reasonably necessary for “a person to leave or be outside their home 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”.

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 secure, 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, for example to seek medical assistance, but visiting a parent with whom a child was not living with 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 6 January 2021, individuals cannot leave home without a reasonable excuse but an exception is “people can continue existing arrangements for contact between parents and children where they live apart.

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 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-19 then the court order should be followed.

If both parents agree that the arrangements under the court order should be temporarily varied during the lockdown period, then 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, then 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 the lockdown, then 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 that the spirit of any court order should be delivered by making safe alternative arrangements for a child.

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 then they should not reopen.

The Association issued updated guidance on 5 January 2021 to say that it expects contact centres to remain open if they can take appropriate measures to ensure they are safe. If your usual contact centre has closed you should contact the National Association of Child Contact Centres, by phone 0845 4500 280 or email contact@naccc.org.uk 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, then safe alternative arrangements should be made such as indirect contact by video or telephone.

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 include cases involving emergency protection orders, interim care orders, secure accommodation orders and deprivation of liberty authorisation. The court 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-19 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 like this 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 (“SPIP”) 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.

Are childcare bubbles and support bubbles still permitted?

Yes, they are. Please see our previous article about whether you’re eligible to form a support and/or childcare bubble and the updated Government guidance.

The Government have said if you form a support bubble it would be best if it was with a household local to yours to prevent the virus from spreading to or from an area where more people are infected. Please note it is against the law if you are not eligible to form a support and/or childcare bubble but do so anyway and for first offences the police can issue a fixed penalty notice of £200, but further offences could cost you up to £6,400, so it pays to stay within the law.

For more details generally, see the ‘Stay at Home’ Government guidance, set out more fully in The Health Protection (Coronavirus, Restrictions) (England) (No3) Regulations 2020 and The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020, updated by The Health Protection (Coronavirus, Restrictions) (No.3) and (All Tiers) (England) (Amendment) Regulations 2021.

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