Child arrangements during self-isolation is a concern for many families. The House of Commons library has recently updated its briefing paper and responded to some key questions concerning the impact of the Covid-19 pandemic on separated families and access to children. The updated paper was published on 21 December 2020.
In this update we set out some guidance on child arrangements for children who are self-isolating.
Many of you will recall the previous guidance from March, where the President of the Family Division made clear that children moving between homes was an exception to the “stay at home” requirement, but that this did not mean that children must move between homes. Parents were told to exercise their reasonable judgement by reference to their child’s health, the risk of infection and the presence of any vulnerable individuals in either household.
In short, little has changed, with the rules at each alert level still providing an exception to the restrictions on meeting friends and family where this is necessary “for access to, and contact between, parents and children who do not live in the same household”. This applies even in Tier 4 locations.
However, with an increase in the use of track and trace and also testing, the latest report goes one step further and addresses the position in respect of children who are self-isolating. Parents are placed under an obligation under government regulations to ensure, so far as reasonably practicable, that any child who has had close contact with somebody who has tested positive for Coronavirus self-isolates for 10 days. The regulations require that anyone subject to the self-isolation requirement must not leave their home with immediate effect (save for specified exceptions such as to seek medical assistance). In contrast to the exception to the “stay at home” requirement outlined above, visiting a parent with whom the child does not usually live with is not listed as a reason why a person self-isolating may leave the house. That, of course, then impacts on any agreed arrangements (whether they are court-ordered or not).
Whilst the default position must be that a child subject to a self-isolation requirement does not leave their home, this can be problematic in some circumstances. Following a Parliamentary Question, government Minister Nadine Dorries has confirmed that:
“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.”
The government does not go further than this, although it makes clear that each scenario is different for every family. My view is that this should constitute a rare exception to the default position, with parents doing their best to comply with the self-isolation requirement wherever they can unless it is impossible. One such example may be that the parent with whom the child would be self-isolating needs to be able to continue to go to work for the NHS.
The latest guidance suggests that, if child arrangements are court ordered and the above position is going to risk a breach of that order, individuals may wish to take specialist advice. This brings us back to the President of the Family Division’s guidance in March, when he stated that “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”. Those alternative arrangements should include video conferencing (whether by FaceTime, Skype, Zoom, WhatsApp or any other conferencing facility) if at all possible.
Whilst many parents will be worried about potentially being in breach of any court order, they should be reassured by the law relating to the enforcement of an order, which provides that a court can decide not to make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the provision. Providing that the parent “breaching” the order is doing so solely to ensure compliance with government guidelines and regulations, it seems likely that this will be classed as a reasonable excuse. Any parent not seeing their child as a result of the other parent’s compliance with government guidelines and regulations should therefore be cautious in making an application to enforce.
Similarly, should parents have agreed arrangements which are not encompassed in an order, the parent not seeing their child may threaten a court application to reinstate the agreed arrangements. The President’s guidance from March addresses what would happen in the event such an application was made, and suggests that “the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice … in place at that time, together with any specific evidence relating to the child or family”.
Again, providing that the parent breaching any agreed arrangement is complying with the rules and can therefore be said to be acting in a reasonable and sensible manner, the court is unlikely to criticise the parent who has varied the agreed arrangements. It should be borne in mind that any communication in relation to the need for a child to self-isolate is likely to be put in writing (e.g. notification via the NHS track and trace app or an email from their school) which will inevitably limit the possible dispute about whether the child did indeed need to self-isolate.
Whilst the position is clear in relation to children subject to the self-isolation requirement moving between homes, I have received a number of queries asking whether the non-resident parent can visit their child at the property within which they are self-isolating for the purpose of contact and also whether a child can visit a parent who is self-isolating at a particular address. The NHS self-isolation guidance confirms that those self-isolating should not have visitors in their home, including friends and family, except for people providing essential care. Certainly, children visiting parents who are self-isolating cannot be said to be providing essential care. The position is less clear cut in relation to a non-resident parent visiting their child at their self-isolation address, as it could be argued that they are providing essential care (for example if the other parent has to leave the property to attend a hospital appointment). The key here is that the care must be essential, which means that parents should avoid this situation unless absolutely necessary.
The latest briefing paper also deals with what should happen to children who are self-isolating after returning from abroad. The Department for Health and Social Care have indicated that individuals self-isolating following travel abroad should only change their accommodation in a limited range of exceptional circumstances. One of these is where there is a legal obligation to do so, such as where there is a shared care arrangement that means a child should move between their parents’ homes. Even then, parents are encouraged to “consider carefully” whether this is an exceptional circumstance that requires a change of address. The passenger locator form completed prior to arrival in the UK will need to be updated if the conclusion is that the circumstances are exceptional.
This appears to somewhat contradict the other advice in respect of self-isolation. It appears that the government is trying to differentiate between children who have been told that they have been in contact with someone who has tested positive for Covid-19 and children who are simply having to self-isolate because they are deemed to be “higher risk” of testing positive for Covid-19 by virtue of having travelled.
Finally, the paper addresses contact centres. The National Association of Child Contact Centres (NACCC) confirmed on 13 October 2020 that centres can remain open, in adherence with national and local guidance. That said, parents should avoid travelling in or out of high-risk areas, which will require careful planning. The NACCC is maintaining a webpage on Covid-19 arrangements which should be referred to for further information. Similarly, the NACCC have suggested that any further queries or concerns should be addressed directly to NACCC.
As ever, the best advice is to communicate:
It should be borne in mind that the potential for your child to have to self-isolate at one home works both ways. Your child may only see their other parent on alternate weekends, but should you be notified that they have had “close contact” with someone who has tested positive for Covid-19 whilst they are with the other parent, the government guidance makes clear that, where possible, they should self-isolate immediately, even if that means they must stay with their “non-resident” parent for 10 days.
Whilst it is not possible for me to give advice on your specific circumstances without arranging a meeting, please do not hesitate to contact me or another member of my Family team should you have any further queries regarding the issues raised in this blog. You may also be interested in my colleague’s earlier blog on child arrangements during the Coronavirus lockdown.