Coronavirus: Separated Families and Contact

I have a Child Arrangements Order, what does that mean?

A Child Arrangements Order is a court order that regulates with when and whom a child is to live with, spend time with or otherwise have contact. If the Child Arrangements Order was made before 22 April 2014, it may be known as a Residence Order or a Contact Order.

A Child Arrangements Order is a legally binding agreement. This means the terms in the order need to be complied with, otherwise this could be a breach of the court order.

You can see more on our page ‘Explaining the legality of a Child Arrangements Order’ here.

What can I do during my contact time?

Generally, a parent can decide where to take the child and how the time will be spent. However, this must be reasonable and comply with the government guidance which is in place at the time of the contact.

What if I am concerned about sending my child because of Covid-19?

If you have a Child Arrangements Order, even if you were concerned about the risk of infection, preventing the other parent from having their court-ordered contact would still be a breach of the court order.

If parents can agree, they can both decide to vary the court order temporarily and informally. However, this is not legally binding, and the original order would still be in effect.

The President of the Family Division released some guidance back in March 2020 entitled ‘Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders’ (CAO). This guidance states that:

“Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.”

The Guidance concludes with the following key message: “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”.

The President has also warned that parents acting in a cynical and opportunistic manner is wrong, and the courts will regard it as wrong.

What if my child and/or I have to self-isolate/quarantine?

Regulation 2 The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 states that if an adult or child has tested positive for Covid-19 or has come in close contact with someone with Covid-19, they are required to self-isolate. You are also required to self-isolate when travelling back to the UK from abroad, unless that country is exempt. You can see that guidance here.

The regulations state that where someone is required to self-isolate, they must remain in:

  • their home;
  • the home of a friend or family member;
  • a bed and breakfast accommodation, accommodation provided or arranged under section 4, 95 or 98 of the Immigration and Asylum Act 1999(1) or other suitable place.

That person self-isolating must not leave the above specified places, except where necessary. The regulation does NOT list visiting a parent whom a child does not usually live with as a reason why a person self-isolating may leave the house.

In response to a Parliamentary Question in November 2020, the Department of Health and Social Care said that “if a child has been instructed to self-isolate by NHS Test and Trace […] where possible, the parents or guardians should arrange for a child to remain at the same address during their period of self-isolation”. Regarding joint-custody parents and an individual leaving self-isolation, the Minister, Nadine Dorries, stated:

There are a limited number of circumstances where an individual may leave self isolation, including where there is a need to fulfil a legal obligation or it becomes impracticable to remain at the original address provided for self-isolation. These circumstances may apply where there are legal arrangements governing the time a child spends with each parent. We do not offer advice on specific circumstances as each scenario is different for every family.

The governmental guidance on self-isolation states that if you or the child have COVID-19 symptoms or a positive test result, you or the child should self-isolate for 1o days.  Other people in the household do not need to self-isolate (providing they do not have COVID-19 symptoms or have not received a positive COVID-19 test themselves) if they have been double vaccinated, are unable to be vaccinate for medical reasons,  are taking part in an approved COVID-19 vaccine trial or are under 18 years and 6 months old. Other member of the household who do not meet the exemption requirements are required to self-isolate for 10 days (or longer if they develop symptoms or receive a positive COVID-19 test). Detailed guidance on self-isolation and exemptions can be found here.

The guidance is similar for those who have had close contact with a person who has tested positive for COVID-19 who does not live in the same household. Guidance on this can be found here. 

We would strongly recommend reading the full government guidance to ensure that you are complying with it correctly, Failure to comply with the self-isolation requirements can result in a fine. Parents/guardians of a child under 18 years old are legally required to ensure the child complies with the self-isoaltion requirements.

What about self-isolation following travel?

A recent case in the family court explained the general position with self-isolation, but specifically after being legally required to after returning from abroad. The case stated that the exemption under the lockdown guidance, which permits child contact visits, is not repeated in the quarantine regulations. You can see the case and judgment here.

It highlighted that the above regulations and specific exemptions. It also further states that the only other possible exemption could be “to fulfil a legal obligation”. Whether complying with a contact order could be considered as an obligation on the mother would depend on its specific wording as generally the obligation is that of the parent making the child available.

This case also states that [paragraph 70] “With the purpose of the quarantine regulations being to protect from infection, in my judgment, a parent who has a child in their care would have reasonable excuse for not complying with a pre-existing order requiring the child to spend time with the other parent if that other parent is required to quarantine following a trip abroad.”

The travel guidance states that upon return to the UK, the people you’re staying with do not need to stay at home, unless they travelled with you.

What if I can only have contact in a contact centre?

The National Association of Child Contact Centres (NACCC) is the supporting membership body for around 350 child contact centres and services located throughout England.

They have a page on Covid-19 which you can find here. This page also details the different alert levels, and what that means for contact centres.

In June 2020, the NACCC states that they are “recommending that centres make independent decisions about whether they feel able to re-open their services.”

If you have been impacted by a contact centre closure, you should contact the NACCC directly, or your contact centre to find out what services are available. You can find contact details of your local contact centre, or the contact centre used here.

What happens if the court order was breached?

If the court order was breach by one parent, the other parent could bring enforcement proceedings. Ultimately, it would be up to the court to decide if there was a breach of the court order, and if that reason for breaching the order is justifiable.

However, even if you were required to self-isolate, the parent could bring enforcement proceedings against you.

Unfortunately, we cannot say if the judge will consider your reason justifiable but given the above, it is likely the court will consider the implications of coronavirus and whether a parent acted reasonably in light of any public health advice or legal requirement to self-isolate/quarantine.

For more information see our How to Guide on Contact and on Enforcement of an order for contact or residence.

I’ve missed a contact session, can I claim it back?

Unfortunately, if you missed the contact session because of Covid-19, you cannot claim this back. The courts generally expect that if a parent was to miss their contact time, then arrangements are made to maintain the contact between a parent and a child. This could include having contact over the phone, skype or face time.