Contact Arrangements and Covid 19 – Advice for Parents and Carers post 17 January 2022

From Monday 17 January 2022, the 10-day self-isolation period for people who have tested positive for Covid-19 has now been reduced to 5 full days in most cases.

It is known that two-thirds of people are not infectious after five dull days of isolation and so the new self-isolation changes enable more people to return to work or school sooner than before and the new rules hope to try and strike a balance between minimising the spread of the virus against trying to have as many non-infectious people as possible permitted to go about their ‘normal’ lives and return to work, education and go back to earlier arrangements they might have had in place for family time earlier.

Given the recent changes, parents might be helped to think about the following questions.

Should my child still travel between parents as per a Court Order?

Since the early stages of the pandemic, the Government clarified that where parents do not live in the same household, children under 18 can be moved between their parents’ homes; nothing from the recent changes announce changes the earlier guidance.

The President of the Family Division issued advice about compliance with child arrangement orders during the early stages of Covid and this states that whilst children can be moved still between separated parents, it does not mean that children must be moved between homes.

As before, in all cases, the decision about whether a child should move between parental homes is in the first instance for the child’s parents to make in the best interests of the child following an 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. Factors such as whether any persons are double vaccinated or have had a booster jab may be relevant to decision making.

If for example you are concerned that your child has a pre-existing health condition, you’re pregnant, or someone in your household has a health condition that makes them vulnerable to the impact of the virus still notwithstanding any vaccination then you should follow the updating Public Health England medical advice.

It may also help to consider the Cafcass advice on effective co-parenting during a pandemic for further guidance on complying with a Child Arrangements Order but please note that this advice has not at all been updated since 20 March 2020 and must therefore be read in light of recent changes as from 17 January 2022 and later.

Should my child still travel between parents if the child – or someone in their household – has or might have Covid?

If your child or someone in their household has contracted Covid or they are displaying any of the symptoms associated with it, then the guidance listed on the Government health advice website remains that they should be self-isolating and should not be transferring between households. This may therefore provide a reasonable explanation to give for not adhering to arrangements however in accordance with best advice and guidance, if any arrangements are missed, then it may be appropriate for any contact lost to be made up at a later date or contact re-arranged in the alternative.

There is a Court Order in place for contact but this isn’t being kept to on the basis that Covid is an issue, what should I do?

If there is a Child Arrangements Order in place then it’s important for both parents and any carer to try and comply with the Order as directed unless you agree to change the arrangements by consent.

For example, in some cases you both might decide it’s best for a child to stay with the other parent for a little while longer than usual if one parent is a key worker. When arrangements are changed for whatever reason, which is usually permitted so long as they are agreed to be all, it is recommended that the change in the arrangements is put in writing and evidenced say by you both signing that change so as to show that this was an alternative arrangement different to what the Court earlier ordered that you both agreed with.

The general point to make is that as parents and holders of parental responsibility, you can change child contact arrangements between yourselves with consent if you are worried that the order would go against Government advice relating to Covid but if you make changes to the arrangements without agreement from your child’s other parent there is a risk they could choose to make an application to the Court to enforce the terms of the original order and if this happens, the Court be asked to look at whether your actions were at all reasonable and sensible in all of the circumstances; if you intend at all to rely upon any change on the grounds of it being related to Covid, you should be able to show that your decision making was based on the applicable Government health advice and guidance at the relevant time you make any change to arrangements without consent.

Where face to face contact is not possible it’s helpful to think about other ways for family time with young people to take place; nothing prevents still telephone contact from taking place or video calls via Facetime or Whatsapp from being attempted and whilst it may seem old fashioned in comparison to the modern alternatives such as email, nothing prevents still an exchange of letters as a direct alternative to face to face arrangements.

If as a parent you are concerned to make any changes and don’t have consent of the other parent to do so, then it is highly advisable that you seriously consider making an application to vary the terms of the existing Order so as to avoid enforcement action being taken on any alleged breach of court order.

If you require legal advice on any of the issues raised by this article relating to Child Arrangements then please do not hesitate to contact Andrew Wraith, Solicitor, at Prism Family Law for more information on 0191 269 6871 or email Andrew.Wraith@prismfamilylaw.co.uk for help.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

Can a child give evidence in family proceedings?

In the case of Re E (A Child) [2016] EWCA Civ 473, Lord Justice McFarlane more recently reminded practitioners that:

“As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the family court.”