All Your Legal Worries Answered
In each issue of ABC, one of Brighton’s leading firms of Solicitors, Dean Wilson LLP, covers a topic of interest to parents everywhere. In this issue, Jennie Apsey, Solicitor in the Family Department, discusses the impact of Covid-19 on Child Arrangements.
As Family lawyers, of all the issues we have been asked to advise on over the last year, the issue of child contact arrangements throughout the Coronavirus pandemic has come up time and time again.
What are the Government guidelines concerning child contact arrangements during the pandemic and can parents alter contact arrangements even if they are the subject of a Child Arrangements Order?
Government advice throughout the pandemic and lockdowns has been that children may move freely between parents’ households, including between households situated in different Tiers. However, the President of the Family Division of the High Court noted that the guidance did not mean that children must move between homes, the decision being one for parents to take after assessing their individual circumstances, for example, the child’s health, the risk of infection and the presence of any recognised vulnerable individuals in either household. Furthermore, the Department of Health and Social Care advised that if a child was instructed to self-isolate by NHS Test and Trace, where possible the child was to remain at the same address throughout the period of isolation.
The President of the Family Division gave further guidance that where Coronavirus restrictions caused the letter of a Child Arrangements Order to be varied by a parent, the spirit of the Order should still be delivered by making alternative arrangements for contact including facilitating video calls through FaceTime, Skype or Zoom.
What child contact issues have you encountered as a result of the pandemic?
Perhaps inevitably, the Government guidance gave rise to some uncertainty with parents questioning what they were permitted to do, and whether they could insist on usual contact arrangements being adhered to. A minority of parents attempted to exploit the situation to exclude the other parent from their usual contact.
What can I do if the other parent breaches the terms of our Child Arrangements Order?
Child Arrangement Orders made since 2008 contain a Warning Notice which explains the consequences of breaching an Order. The penalties that the Court can impose include fines or imprisonment for contempt of court, orders to undertake unpaid work in the community or orders for financial compensation. However, for those parents wanting to bring such breaches to the Court’s attention, an application for enforcement must be made, for which a Court fee of £215 is payable. Parents should also bear in mind, that under section 11J of the Children Act 1989, the 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.” Unfortunately, “reasonable excuse” is not defined within the legislation and is therefore open to interpretation and the Court’s discretion.
Other than making an application to the Court for enforcement, what can I do to ensure that I continue to see my children?
We cannot emphasise enough that now more than ever there is a need to work with the other parent and to look at alternative means of resolving issues that arise between you in relation to care of the children. In our experience, the Court system is currently so clogged up, you are very unlikely to obtain a swift resolution to your contact problem by making an application to the Court. The effects on the Court system of the Coronavirus pandemic are ongoing. Therefore, we would strongly advise only making an application to the Court as a last resort once all other avenues of communication and alternative dispute resolution have been explored.
In the first instance, we would suggest mediation as a means of attempting to resolve matters with the other parent. Mediation is likely to be cheaper, less stressful, and far quicker than the Court process. Furthermore, since you will need to continue to co-parent your children for the duration of their minority, minimising conflict and animosity between you is likely to be hugely beneficial, not only to yourselves as individual parents, but also to your children.