This is a short post to set out the impact that the Regulations coming into force at midnight at the start of Lockdown 2 will have on contact between parents and child. The regulations and this post apply to England only.

General

During lockdown 2 it will be unlawful to leave your home unless you have a reasonable excuse. Gatherings of more than two people are prohibited unless an exception applies. Examples of reasonable excuses for leaving home and of exceptions to the prohibition on gatherings are set out in the regulations.

You can read the regulations here : The Health Protection (Coronavirus, Restrictions) (England)
(No. 4) Regulations 2020
.

You can read the government guidance here.

You can watch a general video about the regulations by barrister Adam Wagner here – see 13m 45 secs for the bit about contact / children.

Regulation 6 sets out the exceptions to the general rule that you mustn’t leave your home. These include things like outdoor exercise or recreation, or to go to work where it is reasonably necessary and can’t be done from home. Exception 9 is the one we need and we will set out the relevant parts before explaining it :

Exception 9: children


(12) Exception 9 is that it is reasonably necessary for P to leave or be outside P’s home—

(a) for the purposes of arrangements for access to, and contact between, parents and a child
where the child does not live in the same household as their parents or one of their
parents;

(b) for the purposes of arrangements for contact between siblings where they do not live in
the same household and one or more of them is—

(i) a child looked after by a local authority, within the meaning of section 22 of the
Children Act 1989, or
(ii) a relevant child, within the meaning of section 23A(a) of that Act;

(c) for the purposes of arrangements for prospective adopters (including their household) to
meet a child or children who may be placed with the prospective adopters as provided for
by an adoption placement plan drawn up in accordance with the Adoption Agencies
Regulations 2005(b) (see regulation 35(2) of those Regulations);

Regulation 11 contains similar exceptions in respect of gatherings as it does for leaving home.

Contact where parents are separated

If there is an established contact arrangement or a child arrangements order concerning your children this part of Exception 9 of Regulation 6 and Exception 13 of Regulation 11 allow that arrangement to lawfully continue :

(a) for the purposes of arrangements for access to, and contact between, parents and a child
where the child does not live in the same household as their parents or one of their
parents;

The government guidance confirms this :

 Parents can still take their children to school, and people can continue existing arrangements for contact between parents and children where they live apart.

Other relatives?

If a child is living with a special guardian contact arrangements with their parents can still continue under the regulations.

The regulations don’t seem to specifically permit contact arrangements between children and other relatives to continue (unless they fall under the childcare exceptions) – don’t be misled by sub paragraph 12(b) – that only relates to children in care (see below). The existence of a contact order might not be classed as making it ‘reasonably necessary’ to leave your home, and a parent who did not stick to such an arrangement might be able to say they had a ‘reasonable excuse’ for not following the contact order whilst the lockdown is running, but this would probably be fact specific (avoiding the risk of a hefty fine might be a reasonable excuse, but on the other hand it could be said that avoiding an enforcement application made leaving the home to take the child to contact ‘reasonably necessary’).

But, at least as far as contact between a child and their parents (and shared care arrangements) are concerned, the regulations don’t stop things carrying on as normal.

As with the first lockdown, some parents may agree to adjust arrangements to minimise unnecessary travel and frequent movements between households in order to minimise transmission risks, and in some cases there will be a particularly medically vulnerable child or other member of the household that might justify a different approach. Parents will have to make individual judgments about any health and safety issues that apply to themselves, their children and their household, and where disputes cannot be resolved the court may be asked to resolve the matter either by making an order, varying or suspending an order or by enforcing a failure to stick to an order where there has not been a reasonable excuse for the breach.

But leaving those issues aside, it definitely isn’t unlawful to carry on with existing contact arrangements just because of the new lockdown.

Meeting up outdoors

The exceptions about outdoor exercise and recreation allow a parent to take a child out during a contact visit. The exception to the gathering limit of 2 people only applies where ‘reasonably necessary’ so would probably not permit additional people such as new partners or step siblings to come along (unless under 5 as these do not count towards the numbers for a gathering). However, if they needed to attend to supervise the contact this would be a reasonably necessary gathering.

If the parents were linked households then both households would be able to meet up outdoors.

Parents in different parts of the UK?

The Welsh Guidance says :

…for children who do not live in the same household as their parents and have existing arrangements in place to visit and safely have contact, these arrangements can continue. This could include children in foster care, children’s homes and adoptive placements.

The Scottish Guidance doesn’t seem to say anything specific about contact but regarding travel says :

The current Scottish Government guidance, given the state of the epidemic across the UK is that people avoid any unnecessary travel between Scotland and England, Wales, or Northern Ireland. 

This applies to people who live in Scotland and to people who live elsewhere in the UK who are thinking of coming to Scotland.

This may change as the virus spreads or is suppressed in different areas, and as the rules and guidance in place there change. Please check back here before starting any journey.  

If you have to travel for essential purposes, follow the guidance on travelling safely…

The Northern Irish guidance says

Children whose parents do not live in the same household can move between homes as normal.

With the possible exception of Scotland then it does not appear that there is any prohibition on leaving home in England in order to take a child for contact with another parent in Wales or Northern Ireland, although we have not reviewed the legislation, only the guidance and although the English Regulations are likely to remain in place unchanged for 28 days it may be that the other jurisdictions will adjust their approach sooner.

As with travel between the homes of separated parents within England it may be that in individual cases there are good reasons why the long journey across borders would not be advisable – but there does not seem to be any legal prohibition on such journeys taking place (other than in Scotland where the advice is not to travel into Scotland unless ‘essential’ – travel for contact is probably ‘reasonably necessary’ but unlikely to be ‘essential’).

The up to date Guidance for the whole of the UK can all be found linked from this page on the gov.uk site.

Children in care or looked after

Paragraph 12(a) above also applies to contact between children in care and their parents. The law doesn’t prevent that either. What is more likely to cause practical barriers in terms of contact between parents and children in care is the need for a covid risk assessment and social distancing or other safety measures to be in place throughout contact (which can make it unnatural), the lack of a suitable venue (contact centres might not be open and if outdoors there may be fewer cafes and public toilets to use and contact might be weather dependent), and a potential shortage of staff if they are unwell, isolating or vulnerable.

In addition, the regulations specifically permit leaving home (and holding gatherings) :

(b) for the purposes of arrangements for contact between siblings where they do not live in
the same household and one or more of them is—

(i) a child looked after by a local authority, within the meaning of section 22 of the
Children Act 1989, or
(ii) a relevant child, within the meaning of section 23A(a) of that Act;

This would cover a situation where one child is at home whilst another is in foster care, or in a residential unit or other placement arranged by social services (and it includes teenagers of 16 and 17 who were looked after). It enables the child who is looked after to travel to meet a sibling, and that sibling to travel to have contact with them – and it would enable the parent to bring them to that contact so that the siblings can see one another.

If supervision is reasonably necessary the gathering exception permits this.

The regulation also permits leaving home or holding gatherings :

(c) for the purposes of arrangements for prospective adopters (including their household) to
meet a child or children who may be placed with the prospective adopters as provided for
by an adoption placement plan drawn up in accordance with the Adoption Agencies
Regulations 2005(b) (see regulation 35(2) of those Regulations);

This is to ensure that where a child is to be adopted steps can still be taken for the child to be introduced to prospective adopters or to travel to and from their placement during any transition period.

A warning

We’ve put this post together under some time pressure. We’ve done our best to make sure it covers the main points as at 5 November, but do please draw our attention to any errors and we will try and correct them – and check the gov.uk site for the up to date position.

This post is not legal advice, but just general guidance. The Transparency Project cannot advise you about what you should do in your individual circumstances. If you are unsure what to do, you should try and discuss matters with the other parent (where safe and practical) and if you can it might be a good idea to seek some legal advice before making any changes.

Feature pic Once They Unlocked So Many Doors by Viewminder on Flickr (Creative Commons)

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