Child Contact and the Coronavirus
Contact between children and parents can be a contentious issue at the best of times and the current Government lockdown has only sought to confuse the issue. It is hoped that the information below will help to answer the most common questions parents are asking themselves and their legal advisors
Please remember that all situations are unique and not every question has an immediately clear answer. The Family Team at Fenners Chambers are continuing to operate as usual on a remote basis: we are happy to answer any questions and attend conferences; we can represent clients at remote hearings by video conference or telephone; we can offer alternative dispute resolution for swift and effective solutions. All members of the team are happy to work via telephone, Skype for Business, Zoom or Microsoft Teams.
Please contact the clerks at firstname.lastname@example.org or 01223 368 761 for more information.
Frequently Asked Questions
We have an agreement or order in place which involves my child moving between two households to spend time with each of their parents. Will I be in trouble if I take my children to contact?
No: the government guidance on staying at home specifically excludes the movement of children, under the age of 18, between their parents’ homes. This is subject to the usual caveats about individuals and their families needing to self-isolate if they are displaying symptoms associated with Covid-19.
Are there any circumstances when direct contact should not take place?
Yes: The President of the Family Division issued guidance on 24th March 2020 which set out that it is for those with parental responsibility to decide whether a child should be moved after making ‘a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other’.
This means that it will be for those with parental responsibility to agree whether a child should be moved between homes taking into account the circumstances of those homes against the government guidance and whether movement can happen safely.
Those with parental responsibility can agree any vary any existing contact arrangements and it is a good idea to be sure that this agreement is recorded by an email or text message. Any agreed variation should last for the period of the lockdown and reflect the current restrictions on movement.
If it is agreed that moving the child between households is not safe, what contact should take place?
The President of the Family Division has stated that it is expected that if the ‘letter’ of a contact arrangements cannot be followed then the ‘spirit’ of that arrangement should take place in a way which is safe and in the best interests of the child. In a situation where direct contact could not take place, then the parties should look at alternative indirect contact arrangements for example by video (Skype/Facetime/WhatsApp) or by telephone in order to ‘establish and maintain contact between the child and the other parent’.
What if me and the other person(s) with parental responsibility cannot agree whether the child should be moved or not?
If parents cannot agree then one parent (or person with parental responsibility) may unilaterally decide that the child should not go to contact. If this decision is later challenged through an application to enforce the order, the ‘the court is likely to look at whether each parent acted reasonably and sensibly in light of the official advice’. In short, if a parent uses the Covid-19 as an excuse to stop contact without any justification relating to the condition of their own household or the household of the other parent, then this is unlikely to be deemed a ‘reasonable excuse’ in enforcement proceedings.
In these situations, it is expected that alternative contact arrangements (i.e. video call/telephone) will take place.
My child’s contact is supervised/supported by a family member/friend – can this contact still go ahead?
If the family member or friend lives in the same household as the parent having the contact, then there is no reason contact cannot go ahead.
The exception to the government guidance on social distancing does not apply to the movement of contact supervisors therefore if the contact supervisor does not live in the same household as the parent having contact the parents may have to look at an alternative supervisor who lives with that parent or alternative contact arrangements such as video calling or telephone.
My child’s contact normally takes place in a contact centre, can this contact still take place?
The first thing to do is to check whether the contact centre remains open and what arrangements they are putting in place.
If the contact centre is closed, is there another contact centre, reasonably accessible to both parents, which is open?
If the contact centre is closed, and there is no reasonable alternative, the general position will be that contact cannot take place on direct basis as the court has determined that a third party is needed to supervise/support the contact. It will also be necessary to investigate whether video/telephone contact can take place safely for both the child and the parent facilitating this, for example if there is a history of domestic abuse.
There may be some limited circumstances where direct contact could take place when a contact centre is unavailable, however this would depend on the circumstances of the individuals involved and it is always recommended that you take legal advice before taking such steps.