Since initial lockdown measures were first introduced in March, one of the most frequently asked questions about the restrictions has concerned child arrangements. These questions were thrust back into the spotlight earlier this month with the introduction of the new tiered system to manage local outbreaks.
So what are the current rules?
Child arrangements during Covid
Whilst the new tier system is designed to differentiate restrictions depending on the local rate of infection, all three tiers share a common stipulation: an exception to the restrictions where a gathering is necessary “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.”
In fact, this exception has been in place since March, when lockdown measures were first introduced. At the time, Sir Andrew McFarlane, President of the Family Division, released guidance addressing the issue. In this guidance, it is stated that: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
In short, spending time with children who do not live with you has, and continues to be, an exception to wider social distancing rules.
What if the child has tested positive for Covid?
The situation changes if the child in question has tested positive for the virus. In this instance, there is no exception to the rule of self-isolation and so children will not be able to move between homes.
While contact may not be allowed physically, published guidance stresses the need to pursue alternative arrangements – “Where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.”
This means that alternative forms of communication, such as Whatsapp, Facetime or Skype, should be used to ensure the child still has some form of contact with their parent when direct contact is not possible.
Can you vary arrangements if you are concerned that the child may be exposed to Covid?
With different areas of the country now seeing different rates of infection, it is likely there will be circumstances in which parents feel concerned about the health of their children and their movement between households. Beyond regional differences, there may also be concerns about the conduct of the other parent if, for example, they are believed to be contravening Public Health England advice.
In such a scenario, the President of the Family Division has issued guidance about varying previously agreed arrangements.
If both parents are in agreement, they are free to temporarily vary child arrangements. If agreement can be reached it is sensible to put this in writing, for example, by text or email. If they are not in agreement, but one parent is sufficiently concerned that conforming to previous arrangements would contravene public health advice, they are able to exercise their parental responsibility and vary the arrangement unilaterally. In such circumstances, the court will expect alternative arrangements to be made if physical contact is not possible, such as indirect contact via FaceTime.
If, later on, the actions of the parent who varied the arrangement are questioned in the Family Court, the court will assess the reasons for this variation and whether each parent acted reasonably. Covid cannot therefore be used as an excuse to prevent direct contact from taking place without good reason.
If parents cannot agree on a variation to the arrangements, then it is possible for an application to be made to the courts. The family courts remain open and the vast majority of hearings are being conducted remotely by telephone or video link. If a court order is already in place, and one parent is breaching that order without good reason, then an application for enforcement can be made if that is necessary.
If at all possible, the best option is for parents to communicate their concerns surrounding Covid with one another with a view to reaching agreement and putting in place a practical solution which best safeguards the health of their children and wider families.
For more information, read the most recent government guidance here.
If you would like to know more about the issues covered in this article, Vardags offers a free consultation to qualifying individuals.
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