The impact of Covid-19 restrictions on child access arrangements

The impact of Covid-19 restrictions on child access arrangements 

The Covid-19 emergency has had a profound impact on Irish society. Since the introduction of the Emergency Measures in the Public Interest (Covid-19) Act 2020, restrictions have been placed on the movement of people across the country, schools are closed, and except for essential services, so too are all businesses.

As a consequence of these measures, families have been cut off from one another. Children who had enjoyed co-parenting arrangements are no longer able to do so. Many custodial parents are in the difficult position of educating and entertaining their children on a daily basis, while many non-custodial parents are unable to see their children.

In this piece we will consider the current climate regarding access to children, what is being done to bridge the gap between parties during lockdown, and ask whether this suspension of access is really in the best interests of the child.

Access is predominantly dealt with by the District Court, but due to the crisis its ability to function has been impacted quite significantly. The main courts complex for the Dublin Metropolitan District, Dolphin House District Court, is currently not accepting applications for any new matters, except for emergency domestic violence cases such as Interim Barring Orders/Full Barring Order Applications.

The difficult decision to reduce traffic through the courts was made based on public health advice, but as a consequence, many important applications will be delayed. Applications to regulate access, where no access order currently exists or applications to vary/breach of access, when existing orders remain in place, are not being heard. As such, a consequence of this crisis is that non-custodial parents are being prohibited from making applications to the court and enforcing their legal rights with regard to access.

Under normal circumstances, an applicant parent can make an application to the court to regulate access, in circumstances where a respondent parent is not consenting to access. Furthermore, an applicant parent can bring an application for a breach of access if the respondent parent is refusing or frustrating access without merit.

To address this evolving situation, The President of the District Court, Judge Colin Daly, has been extremely vocal and very progressive in his response to the Covid-19 emergency. In an attempt to bridge the gap between the parties regarding access, he has stated that the parties are free to vary family court orders during the coronavirus crisis, provided both parties are in agreement. Furthermore he strongly advocated the use of technology to see the parties through the current situation, recommending using video technologies such as Skype, Zoom, Whatsapp or Facetime to maintain the bond between the parties, and where that is not possible, that telephone calls should be arranged.

President Daly has reiterated his view that there should be strong communication between the parties in this difficult time and that the best outcome for children is for “parents to contact each other to set out their concerns and suggest ideas for practical solutions that can be put in place. The health concerns of parents, their children and the extended family need to be considered when sorting out arrangements.”

Good faith and flexibility on behalf of both parties is essential, but this is not always forthcoming and it is likely that some parties will restrict access and seek to justify this on the basis of Covid-19 related health concerns and restriction movement issues. It is worth noting that even during this emergency period, exceptions to the restriction of the movement of people include movement for “for vital family reasons including caring for children, elderly or vulnerable people but excluding social family visits.” On this basis, it would seem prudent to consider that access should continue to take place, as per court order or consent arrangement, where possible.

On the 5^th April 2020, the Family Lawyers Association of Ireland: Covid 19 Steering Group issued guidelines for access during Covid-19, to aid practitioners and clients in relation to dealing with access during the pandemic. This was prepared by family law practitioners and endorsed by the Family Lawyers Association and the Family and Child Law Committee of the Law Society of Ireland. The guidelines also reflect the position of the Department of Justice and Equality, issued by Minister Charlie Flanagan yesterday, and endorse the practice direction of the President of the District Court, last week.  And while it is stressed that they should not act as a substitute from specific legal advice in a given case, they are of use in guiding those who are in difficult situations.

These guidelines are:

1. Court orders in relation to access remain in place and should be complied with to the greatest degree possible in the circumstances. Children are allowed to move between parents’ homes for access. Covid-19 cannot be used as an excuse to ignore a court order. Parents are advised to have a copy of the court order with them when travelling for access.
2. If there is no court order in place and an arrangement has been working between parents, this should continue, save in exceptional circumstances.
3. It is important that common sense prevails in relation to access, in the current climate. The best outcome for children is for parents to contact each other to set out their concerns and suggest ideas for practical solutions that can be put in place.  The health concerns of parents, their children and the extended family need to be considered when sorting out arrangements.
4. Even if there is a court order in place, parents can come to their own arrangements for additional or alternative remote contact, such as telephone/Skype/Facetime/Whatsapp, to allow children to have extensive contact with the other parent. Parents should make a note of this temporary agreement by text or email. These current restrictions mean that the detail of every access order may not be fully implementable, but the responsibility and expectation of parents is to make every effort to allow children to continue to have access to the other parent in a safe, alternative way.
5. The health and safety of children and family members (especially the elderly, grandparents and those with an underlying medical condition) must be a priority. If one parent is living with his/her parents every effort should be made to ensure the grandparents are not put at risk.
6. Access with parents working in frontline services should continue as normal, except in exceptional circumstances.  These parents will, of course, have received advice from their places of work in relation to contact with their families.  This advice should be shared with the other parent and respected by all.
7. If a child has a compromised immune system, the health and safety of the child has to take precedence and all measures must be taken to protect the child. The best interests of the child must be the paramount consideration.
8. Parents should both engage in social distancing, abide by the rules concerning non-interaction with third parties, and the stay at home direction, and be able to give clear assurances in this regard.
9. Parents should engage in mediation to resolve difficulties if they are unable to agree access during this time.  If mediation is unavailable or unsuccessful, the assistance of solicitors may help in achieving a temporary agreement.
10. The courts are still dealing with urgent cases involving domestic violence and vulnerable people. Applications for breach of access are not generally considered to be urgent, but there may be exceptional cases and your solicitor will advise you in this regard.
11. Additionally, the Practice Direction of the President of the District Court of 16 March, 2020, states that a case which does not come into the defined urgent category can be treated as urgent if a good case can be made. If you have a solicitor, you should contact him/her.  If not, or if you cannot contact your solicitor, you can email your court office setting out the reasons why the case should be considered urgent. You, or your solicitor, should email the other side to let them know you have applied and they must be given a chance to set out their position. You will be notified of the court’s decision by email.
12. Contact details for offices are available here:  https://beta.courts.ie/content/find-us

It is expected that some parents will decide unilaterally not to honour court ordered/agreed access and will seek to legitimise their actions on the basis of health concerns and government restrictions. Essentially, this will result in a non-custodial parent missing significant portions of access and more significantly it will result in a situation where a child is deprived of their right to access with their parents. It should not be argued that this is in their best interest, as access is fundamentally the right of the child. A recent decision of Judge Mary Larkin (as reported in the Irish Times on the  3^rd April 2020) has made it clear that the unilateral denial of court ordered access may result in serious consequences.

It is a very positive development that lawyers are now armed with best practise guidelines, and all parties involved in their development should be commended for their proactive response to this emergency.  It remains to be seen however, how the courts will deal with applications for breaches of access, in due course, and this writer hopes that each matter will be treated on a case by case basis, assessing the merits of each application individually and not allowing a pattern to develop where Covid-19 is accepted as an acceptable explanation for the absolute suspension of a child’s right to access.

Matthew de Courcy is a Partner in KOD Lyons Solicitors