Coronavirus – managing child contact and complying with court orders during the third lockdown

LAST UPDATED 07.01.2021

As a third lockdown comes into force in England, we continue to receive calls seeking advice about child contact arrangements.

Many families will have had to make changes to their arrangements during the pandemic and will need to continue to do so. As before, how significant those changes are, depend on the Government guidance at the time and the circumstances of the individual family. We have set out below what we believe to be the most sensible approach based on the latest Stay At Home Rules.

Government guidance

Everyone must follow the Government guidance. This section refers to the latest guidance in England. If you live in Wales, the country is in Alert level 4 and the guidance is similar. You can read the latest guidance from the Welsh Government here.

As the situation changes, so does the guidance. As a result, you will need to keep up to date with the current Government guidance and make sure you are complying with it. In England, there are currently three main categories of household, check which one you fall into and read the guidance:

Those who have symptoms, have received a positive test result or are in a household with anyone who has symptoms or has received a positive test result

Clinically extremely vulnerable people

At the time of writing, the guidance for clinically extremely vulnerable people refers to the tier you are in and states that updated shielding advice only applies to those in Tier 4. However, on 4 January, the Prime Minister announced that all clinically extremely vulnerable people need to shield, and they will receive a letter from their GP. This suggests that the guidance may change. Therefore, if you or anyone in your household is clinically extremely vulnerable, you should keep an eye on the linked page above for updates and look out for a letter from the GP.

Everyone else

There is also a list of people who are considered clinically vulnerable. At present, the guidance for these people is the same as for everyone else – stay at home – but this group of people need to be particularly careful to limit their social interactions. The list can be found on the NHS website here.

General approach – be pragmatic and communicate clearly

The Government’s guidance on staying at home states that children can continue to travel between separated parents. However, this does not mean that they must continue to do so. Parents need to make decisions that are in line with the guidance and be pragmatic about how to keep everyone safe.

If you or someone in your household falls into the category of clinically extremely vulnerable, face to face contact may have to stop in line with the strict measures in place to protect extremely vulnerable people and prevent the spread of the virus. In these situations, the timescales for how long contact may need to be varied is unclear so make sure you stay up to date on the latest position.

If you or someone in the household develops symptoms or receives a positive test result, the household will need to self-isolate and your child should not travel between households. The need to self-isolate also applies to people in your support bubble and childcare bubble if you have one. The guidance about how long different people will need to self-isolate vary depending on testing, when symptoms started and if you/your child develops symptoms after the start of the initial period of self-isolation. Follow the link above to read the detail of the rules about self-isolation.

Whether there is a court order in place or contact is agreed informally, if it is possible for the arrangements to safely continue, they should. Parents should communicate clearly with each other that they believe this is possible and remind each other of the guidance about hand washing and staying at home. If contact is taking place during the school week, inform the other parent of any arrangements the school has put in place and how to access any online learning available.

If you believe it is necessary to change the contact arrangements, communicate with the other parent about the reasons why you believe changes need to be made and think practically about how relationships can be maintained. Importantly, all parents should comply with the guidance and keep their children, themselves and the public safe.

A court order can be varied by agreement. If you and the other parent agree to vary any court orders, set out in writing (by note, email, text message, etc) what the variation is so that you are both clear what is going to happen. Set a date which will be the latest date by which the agreement will be reviewed so that you both have certainty but bear in mind that the situation is constantly changing and it may need to be reviewed earlier.

If a court order is in place and it is possible to safely comply with the order, do so. The Government guidance states that children can travel between households where their parents are separated. However, if it is not safe to continue the order in line with the Government guidance, you should follow the Government guidance.

The President of the Family Division has published some brief guidance here: https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/

Some of the changes you might want to consider

  • If you normally travel by public transport to get to handover, can either you or the other parent drive instead?
  • If contact arrangements involve a high frequency of travel between households, is there a different way of arranging contact to reduce the amount of time spent out of the house?
  • If you are worried about the other parent not complying with the guidance, have you told them this and sent them information about staying at home, hand washing, etc?
  • If you have access to technology, have you explored the different ways in which the child and other parent can communicate with each other?

Survivors of domestic abuse

Many of our callers are managing contact arrangements with abusers both informally and under court orders. The lockdown is not justification to stop contact by itself. But, there may be situations where you will need to do that. We cannot cover every situation and appreciate that it will be particularly difficult to agree alternative arrangements but read our general guidance above and consider whether it might work for you.

For some survivors, it will be impossible to agree alternative arrangements and we have been told of abusers using the situation to continue their abuse by placing children at risk intentionally, insisting on arrangements continuing contrary to guidance, issuing enforcement applications unreasonably and keeping children.

If you can’t reach an agreement with the other parent

Whether or not there is a court order in place, everyone must comply with the Government guidance. If you have tried to reach an agreement with the other parent and they do not agree, you can use your parental responsibility to make a decision that is in the best interests of the child (see Para 7 of the President of the Family Division’s Guidance).

Even in this situation, communication is extremely important. You should make sure you have communicated clearly with the other parent the reasons why you believe contact needs to change in line with the guidance and, if possible, suggest alternatives. Ensure that there is a written record of all such communications (e.g., by email, text message, WhatsApp).

Breach of a child arrangements order (CAO)

If there is an order in place and you and the other parent agree to vary it, then that is fine. If you decide not to follow the order without agreement, this is a breach of the order. However, you can exercise your parental responsibility unilaterally (this means without agreement) to keep everyone safe. You should make sure you are following the Government’s guidance. The other parent may threaten to make an application to the court for an enforcement order.

When the court deals with enforcement applications, they give the parent who has breached the order an opportunity to explain why. If it is considered reasonable in the circumstances, the court will not enforce the breach. In the context of the coronavirus pandemic, the court is likely to look at whether each parent acted reasonably in light of Government advice and the Stay at Home Rules in place at the time. It is important to remember that part of the Government’s guidance is that children can still travel between separated parents. If you are going to change contact arrangements ordered by the court, you need to make sure you have a good reason. This is why it is important to communicate with the other parent. For example, if you need to stop face to face contact because your new partner is considered clinically extremely vulnerable, the other parent may not know this.

Where there is an order for contact in place, the court expects the ‘spirit’ of the order to be complied with. This means that if the court has said a parent should be having contact, even if the exact terms of the order cannot be complied with, the principle that contact should happen remains.

Some issues to consider when thinking about alternatives to contact when there are safety concerns

  • If you do not want the other parent to have your contact details, you could create an email address specifically to set different accounts, for example on Skype for video calls. When setting up email addresses and online forms of communication, we recommend using a computer instead of your phone if this is possible and logging out after each communication. It means you will avoid notifications coming up on your phone when the other parent has responded.
  • If you are proposing telephone contact and are worried the other parent will use this as an excuse to call you constantly, consider whether it is possible to get a cheap phone with a pay-as-you-go sim that you can turn on during designated telephone contact time and turn off after contact has taken place. This means the other parent can only call during contact time.
  • If contact normally takes place in the community, such as a restaurant or shopping centre, can contact be moved to an outdoor location like a park? If this is not safe, is it safe to manage contact over the phone, video calls or an app like Skype?
  • If your child is too young to participate in a telephone or video call, you may suggest sending regular updates with photographs.
  • If you are concerned about the other parent being able to see or hear inside your home during video or telephone calls, can you designate a space for contact to take place such as next to a particular toy and remove anything that may identify where you are if that is an issue. Make sure it is not next to a window where the other parent may be able to identify the location from what’s outside.
  • If there is a non-molestation order in place which prohibits all contact between you and the other parent, do you have a family member or friend who could safely support communication in some way?
  • If contact usually takes place in a contact centre because of safety concerns and the centre has closed, you are under no obligation to make the child available for contact outside the contact centre, but consider whether it would be possible to safely manage telephone or video contact. If it is not possible to do this safely, then it will not be possible for contact to go ahead.
  • If a risk assessment/court order has concluded that the other parent poses a risk to the child or to you, and contact has been ordered to take place at a supervised contact centre for this reason, then it is unlikely it will be not appropriate for contact to be supervised by family members or friends and should not go ahead if the contact centre is closed.

If you are proposing alternative contact arrangements, always be clear about dates, times and review.

We have set out some template emails to help you communicate with the other parent if you will find this particularly difficult (opens pdf):

What if I don’t trust the other parent not to use the situation to continue their abuse?

If the other parent has kept the child saying they or the child has symptoms, the guidance is clear that they should self-isolate and arrange a test. The household should isolate too. If you have parental responsibility, you have the right to be informed of your child’s test result. For information on parental responsibility see Children and the law: parental responsibility. It is also reasonable for the other parent to inform you of a positive test in the household. If the child or anyone in the household receives a positive test and there are no other concerns, there is very little that can be done as the advice from the Government and the NHS is that the household must isolate.

The child should be returned at the end of the recommended period and, if not, it may be appropriate to apply to the court for an emergency order for the child’s return. Seek legal advice in this situation.

However, if you have other concerns, for example about the parent not complying with the guidance about staying at home or threats having been made along these lines, it may not be safe to send the child for contact. You will need to decide this based on the history of the other parent’s behaviour and what evidence you have that they are not complying with the guidance. As above, you should communicate this clearly to the other parent and, if possible, suggest alternative arrangements that will keep everyone safe.

It may be the case that the child is living with the other parent and there are orders or arrangements in place for you to have contact with the child. If the other parent stops your contact with the child and makes no alternative reasonable arrangements for contact, write to them suggesting some of your own. If they do not agree and you do not believe there is any reason under Government guidance or the Stay at Home Rules for this, you could apply to the court for the situation to be resolved. This is likely to take place by way of a remote hearing.

What if the other parent is refusing to return the child after contact without good reason?

If the other parent has refused to return the child at the end of contact and they have not given any reason. Or the reason they have given is not in line with the Government guidance on Staying at Home, you have options available.

You can contact a legal aid solicitor to find out if you are eligible for legal aid. They may write to the other parent giving them a deadline by which the child must be returned to your care or you will apply to the court for an urgent order. This deadline should be very short (a matter of a day or two). If you cannot get advice, you can try doing the same. See our guide to writing warning letters here. If you are going to do this, you need to be ready to make the application if the other parent has still not returned the child by the date you have given.

Depending on the situation, it may be safer to make an urgent application to the court. The family court is still hearing cases but hearings are taking place over the telephone or by video conference. You can visit our guidance on remote hearings for more information.

You can apply for a specific issue order for the child to be returned to your care. You may also want to ask the court to vary the current child arrangements order in the same application. You will need to use form C100 and write a witness statement too. You will need to explain why it is urgent in your application and include a copy of the current order. You will need to explain that the other parent has a history of abuse.

You need to check which court is open as some may be closed. If your local court has closed, you can send your application to a court that is open.

Getting support

Having support to help deal with the court process is important. We can help you work out if you are eligible for legal aid and give family law advice on our family law advice line. You can also contact FLOWS to get family law advice.

It might be difficult to get face to face support at the moment but domestic abuse support services are working hard to make sure they can still offer support.

Many support services will have experience of supporting women in the family court. If you have a support worker, speak to them about the hearing. Ask to have a conversation with them before and after the hearing. They might already know what the family courts in your area are doing and be able to help you speak to the court. Contact the National Domestic Abuse Helpline on 0808 2000 247 to find out what support you can get.

 
 
 

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