Generate PDF

From 1st June 2020, lockdown in England has considerably eased, with many children returning to schools and families and friends being given the green light to meet in groups of up to six, so long as observing social distancing rules when outside.

Considerable confusion arose at the start of the lockdown period back in March when government ministers appeared to contradict the government’s own advice on how child contact could continue against the background of restrictions. As families are released from lockdown, that confusion continues for many as they adjust to the ‘new normal’. This article aims to address some of the most common questions we are being asked about child contact arrangements as the lockdown eases. 

Can contact start again?

For many families, contact continued more or less as normal throughout lockdown. Rules requiring us to stay at home specifically did not apply to children travelling between households for contact so long as general rules on social distancing and hygiene were adhered to. However, many families chose to limit or stop contact during the lockdown period to protect children or other members of the household involved who were shielding. Some families will have members who are required to continue to shield even after the lockdown is eased and if they have stopped contact, they will have to decide when and how contact resumes.

Does contact start up again exactly in line with my court order/agreement now lockdown is over?

In theory, yes. Other than working around new guidelines issued by the government, contact can begin again.  However, many parents who have been through the Family Court system will be aware that the court favours an approach where there is a smooth transition between arrangements to lessen any impact on the child(ren) caused by big changes. 

Even if a child has been part of a contact arrangement for some time, they may still benefit from a brief transition period back to the usual arrangement. This has been a confusing and scary time for a lot of children and they’ve heard a lot of messages about how staying at home is safe, so they might need the support of both parents to get back to normality and to feel confident and happy doing the types of activities they used to do as part of contact (and no doubt everyday life too).

What about grandparents?

Even if children have been travelling between parents’ houses, it is likely they will not have seen their grandparents for quite some time.  Happily, they can now meet with grandparents again, so long as current rules are complied with (up to six people social distancing outside).  Those who are shielding, which includes a great many older people, can now go out so there is no reason that contact with grandparents shouldn’t be back on the agenda (weather permitting – who knows how much the British weather will allow us to socialise outside in the coming weeks).

What can we do if we have a dispute about when and how contact should start again?

Just as parents were encouraged to resolve disputes within the lockdown period between themselves, this will continue to be the case now the lockdown has eased. Mediation and solicitor negotiation should be the first port of call for parents who cannot have successful direct discussion. Arbitration (a  process of bringing the matter before an fully qualified arbitrator who will be a very experienced solicitor, barrister or judge) is also available for more disputes. The process can be much quicker than the court process and can be more cost effective.   

There will no doubt be some cases where parents having tried, cannot agree and the Family Court will continue to take these cases  but will be facing significant backlogs. Remote hearings look set to continue for some time and listings in all, but the most urgent cases are delayed in comparison to normal.

What if my child’s other parent is keeping them away from school despite their age group being able to return? Or what if the other parent is sending the child back to school and I do not agree?

The default position is that schooling arrangements should be agreed between everyone with parental responsibility for a child. At the moment children can be sent back ‘if parents wish’, so agreement should be a first step. If this is not possible, parents should try to settle the dispute outside court, for example through solicitors or mediation. If this is not possible then proceedings would be required to resolve the issue. 

An application for a Specific Issue Order could be made to compel a parent to send their child to school (this can also apply to medical treatment and making a child available for contact). A Prohibited Steps Order could be sought to prevent a child being sent to school.

While parents continue to have discretion as to whether or not children attend a school building for lessons between now and September, the Court’s guiding factor will be what best serves the child’s interests taking into account all the factors in the case. These will include health, home environment and the continuity of education. Results are likely to vary on a case by case basis, although it may be that relatively few cases on the subject have  been brought to court and this is probably due to the  long delays before cases can be listed. A solicitor can advise on the best alternatives for resolving any dispute outside of court.

In any event, it is important that parents try to agree before they even consider approaching the court unless they feel their child is in imminent danger of serious harm. 

Is maintenance still payable if contact is not taking place?

Yes, maintenance varies depending on the number of overnight stays so may be reduced while contact is not taking place, but it remains payable at the minimum level in any event. The minimum level is based on the paying parent’s income and can be calculated online here.

If you are concerned about any aspect of contact starting up again, or if you are engaged in a dispute, please contact me or my colleagues who also specialise in this area of law, Ann Thomas, Helen Blackburn or Emma Nash.

Megan Bennie
megan.bennie@iflg.uk.com
The International Family Law Group LLP
www.iflg.uk.com
© June 2020