The Government’s announcement on 5 January 2021 to reintroduce lockdown measures came as a shock to many of us. Many children are back to learning from home and having very limited interaction with their friends and wider family.
During lockdown, what happens to child arrangements for children who do not live with both of their parents?
Many separated families have been left wondering whether children can travel between their parents’ houses and not be at risk of breaching the Government’s strict restrictions and limited reasons for leaving the house.
When the first set of Coronavirus restrictions were introduced in March 2020, the President of the Family Division provided us with guidance about how child arrangements should be considered and dealt with during the lockdown.
Sense and safety were key factors for the President of the Family Division, and he explained to us that the expectation should be that parents can still continue to care for their children if they can act sensibly and safely when making decisions regarding the arrangements. Indeed, the President realised that every family is different, and how safety can be achieved will be different for each family.
The President went on to explain that, where parents do not live in the same household, children under 18 can be moved between their parents’ homes. Importantly, the key word here is ‘can’, and is not ‘must’.
Parents must carefully consider and assess their own health, their children’s health, the presence of any recognised vulnerable individuals in one household or the other and their personal circumstances, in order to reach sensible and safe decisions.
What is the position where a Child Arrangements Order is in place and the parents disagree about contact and living arrangements during the Coronavirus lockdown?
In these situations, the President’s guidance about families acting safely and sensibly prevails. It is the expectation that parents must put their children’s welfare and wellbeing first. Whilst a child’s safety is paramount, of course if that child lives with vulnerable relatives or is in frequent contact with vulnerable relatives by way of a support bubble, then this must obviously form part of the risk assessment.
However, if parents cannot agree, and one parent is sufficiently concerned that complying with the Child Arrangements Order would put either a member of a household at considerable risk, then that parent may exercise their parental responsibility and vary the Child Arrangements Order to one which they consider to be safe.
Where a parent does make an application to vary a Child Arrangements Order, a judge is likely to look to see whether each parent acted reasonably and sensibly in light of the Government’s guidance, and consider guidance from a local GP or other health professional.
Again, the family’s individual circumstances will be looked at as a whole, and there must be appreciation that one separated family is not the same from the next.
A judge can decide to vary a Child Arrangements Order, whether that be on a temporary or permanent basis.
How and to what extent should alternative arrangements be made?
In the event where direct contact is temporarily suspended during a Coronavirus lockdown, a judge will expect alternative arrangements to be made so as to maintain regular contact. The parent who the child is living with should actively encourage and assist with indirect contact, whether this be through Facetime, WhatsApp facetime, Skype or Zoom. These sorts of arrangements should be child-led where possible, and the duration of these indirect calls, should be reflective of the child’s age and concentration ability.
What happens with child arrangements if the child needs to self-isolate?
If it is the case that child arrangements are being carried out in the normal and usual way, and there is no need to alter any child arrangements, the question has to be considered as to what happens with child arrangements in the event that a child now needs to self-isolate?
If an adult is notified that their child has had close contact with somebody who has tested positive for Coronavirus, that parent must arrange for their child to self-isolate.
Whilst there are a list of reasons that permit a child from leaving their home whilst self-isolating, unfortunately visiting a parent whom a child is not living with at the time they are notified of the requirement to self-isolate is not specifically listed.
This obviously causes great difficulty and has become a grey area.
Given the President’s advice on this matter, decisions made by parents whilst a child is self-isolating need to be safe and sensible. Self-isolation is usually a 10 day period, and a judge is likely to look to see whether each parent acted reasonably and sensibly during that short period of time when dealing with child arrangements.
Undoubtedly, the Coronavirus and the lockdowns which have come about from it, have made child arrangements very complicated and difficult for families. Whilst the President does appreciate that there are some families where communication between the parents is incredibly difficult, the President stated back in March 2020 that parents should communicate with one another about their worries and what they think would be a good and practical solution. However, it is important for parents to not use Coronavirus as an excuse to minimise contact with the other parent. Any parent’s action in exaggerating their worries or concerns would be considered unacceptable and highly unreasonable.
If you have any concerns or worries about your own family and any child arrangements which are in place, please contact the Family Team at Crane & Staples, where we would be happy to help and discuss your position with you.