2 October 2020

Parental Contact: Self-Isolation – a reasonable excuse to not comply with your Child Arrangements Order

There are, sadly, huge numbers of separated parents whose children are the subject of a 'Child Arrangements Order', being an order of the Court specifying with whom the child lives or spends time.

Page last updated: 2 October 2020

The content on this page is due to be updated since initial publication to reflect changes to the rules and guidance in this rapidly evolving situation.

The Covid-19 pandemic has exacerbated tensions amongst parents who must abide by such an order. Whilst the country was in lockdown, various iterations of Coronavirus legislation allowed for the movement of children between homes if their parents were separated. Guidance issued by the President of the Family Division in March 2020 still allowed, however, for the possibility of one parent varying the arrangements in an order should they be suitably concerned that complying with it would be against prevailing health advice. However, the same guidance also said that if one parent exercises such a right unilaterally against the other, this decision can be questioned in future court proceedings to check it was reasonable and sensible in all the circumstances at the time. In essence the message was: do not use the pandemic to start messing around with the established status quo.

Fast forward to October and we now live in the world of travel corridors and a 14-day quarantine period if returning from a non-exempt country. A recent judgment in the High Court (K (A Child) (Stay of Return Order: Asylum Application) (Contact to a Parent in Self-Isolation) [2020] EWHC 2394 (Fam)), has provided an example of when it may be reasonable to change existing child arrangements.

The case was primarily concerned with child abduction/asylum proceedings but one question to be answered by the Court was the following:

Should any order of the Court require contact between a child and his parent during the period when the parent is required to self-isolate by reason of travelling to England from a non-exempt country or does the requirement on the parent to isolate prohibit that parent having contact with the child?

In this case, the parent in question was not part of same 'household' as the child because the parent lived abroad and did not have direct contact with them. Despite this, and relevant for the majority of parents abiding by Child Arrangements Orders, the Judge made the following points:

  1. Children can be part of two 'households' and the regulations do not require a parent to self-isolate from a member of their household.
  2. However, the government guidance advises that the returning person should self-isolate, save for in exceptional circumstances.
  3. The guidance states that it is 'important to avoid as much contact with other people as possible in your home in order to reduce the risk of transmitting coronavirus'.
  4. It is notable that the guidance provides for a child who is required to self-isolate to move to the home of a parent who is not, the parent then being exposed to a risk of infection. The guidance does not address a child visiting a parent who is required to self-isolate, the risk of infection then being on the child.
  5. The purposes of the quarantine regulations are to protect the citizens of England from Covid-19 infection that is unwittingly brought into the country by infected travellers. It is in a child's interest to be protected from infection and therefore "the court should give effect to the purpose of the regulations and be extremely reluctant to make an order that exposes a child to the risk of contracting Covid-19 when a parent has arrived from a country that does not have the benefit of a travel corridor exemption."
  6. A parent who has a child in their care would have a 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.

What we can see from the above is that if a child returns from a non-exempt country he/she can move between households (i.e. is not required to self-isolate). The Judge thought it relevant that the regulations and guidance did not specifically deal with the other scenario – when a parent must self-isolate. Looking at the purpose behind the guidance and regulations, the Judge clearly felt it would not be right to expose a child to a potentially infected parent and so suggests a court should not order it and also suggests that the other parent has a reasonable excuse for not complying with their existing Child Arrangements Order for the duration of the self-isolation period.

It could also be argued that this would apply when a parent must self-isolate for any reason, not only because a parent has recently returned from a non-exempt country.

If you are finding yourself in a similar scenario, or have any other family law issues, speak with one of our specialist family lawyers.

Matthew Brunsdon-Tully is a Partner, and Timothy Evans, an Associate, in the Family team.

Disclaimer

This note reflects our opinion and views as of 2 October 2020 and is a general summary of the legal position in England and Wales. It does not constitute legal advice.


Episode Six: Breaking Good - Episode Six: Putting the children first - top tips for separated parents navigating the COVID-19 pandemic

Co-hosts Marcus Brigstocke and Head of Family, Jo Edwards are joined by preeminent family Barrister Matthew Brunsdon-Tully to discuss the challenges facing separated parents during the pandemic and tips on how best to resolve the issues, drawing on experience of the common questions that have arisen.

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