350 Shades of Grey; Covid-19 Quarantine Rules and Contact Arrangements

26 Oct

350 Shades Of Grey; Trying To Interpret The Covid-19 Rules For Contact Arrangements For Non-Resident Parents Who Live Or Regularly Work Abroad.

 

It seems that many of the rules relating to Covid-19 aren’t particularly clear and are ever changing. Navigating those rules can be even more complex when Court orders are in place, parental relationships with children are at stake and separated parents are trying to achieve an outcome which best protects their child and their respective family environments.

 

For parents who live or work abroad and who are not primary carers for children, are their contact arrangements hampered by the implementation of the 14-day quarantine / self-isolation rule? Would a parent on entering the UK for the purposes of seeing their child need to isolate for 14 days beforehand? This would make arrangements for seeing children of parents who live or work abroad near on impossible.

 

The rules are categorically clear that in the event of a positive Covid-19 test result, visiting a parent whom a child does not usually live with is not listed as a reason why a person self-isolating may leave the house[1]. But what is the situation for a 14-day quarantine period when coming to the UK from abroad?

 

The government guidance on this issue was updated on 25th September 2020: DHSC: Coronavirus (COVID-19): how to self-isolate when you travel to the UK. It states that:-

 

When you arrive in the UK, you must travel directly to the place you are staying and not leave until 14 days have passed since you were last in a non-exempt country or territory. This is known as ‘self-isolating’.

 

The 14-day period starts from the day after you leave a non-exempt country or territory. A non-exempt country or territory is any country or territory that is not on the travel corridors list.

 

There are some exemptions to the 14-day period for certain jobs; these are set out in Coronavirus (COVID-19): jobs that qualify for travel exemptions updated 28th September 2020. For those non-resident parents who work/ live abroad, the following is set out in the exemptions list which might be of assistance and offer clarity :-

 

Regular work abroad

 

Applies to:

 

People who live in the UK but work in another country and travel between the UK and country of work at least once a week.

 

You will need to complete the passenger locator form before you travel to the UK.

 

You will not need to self-isolate if you are staying in England, Wales or Northern Ireland. You will need to self-isolate if you are staying in Scotland.

 

You’ll need to show evidence that you reside in one country but work in the other and you should also be able to demonstrate that you travel between the two on a minimum of a weekly basis, for example, a season ticket.

 

Regular work in the UK, living abroad

 

Applies to:

 

People who live outside the UK but work in the UK and travel between their country of residence and the UK at least once a week.

 

You will need to complete the passenger locator form before you travel to the UK.

 

You will not need to self-isolate if you are staying in England, Wales or Northern Ireland. You will need to self-isolate if you are staying in Scotland.

 

You’ll need to show evidence that you reside in one country but work in the other and you should also be able to demonstrate that you travel between the two on a minimum of a weekly basis, for example, a season ticket.

 

So this clearly sets out that for a parent who works abroad once per week and lives in the UK or lives abroad and works in the UK at least once a week, the 14-day isolation period is not applicable. Contact arrangements for parents who meet this criteria (or work in areas covered by the exemptions list) can therefore continue with their existing contact arrangements without fear of breaching Covid-19 rules.

 

But what about parents who live / work abroad but return to the UK simply to see their children? Or those who come to the UK less frequently than once per week?

 

The guidance (DHSC: Coronavirus (COVID-19): how to self-isolate when you travel to the UK)  states:-

 

In England, if you do not self-isolate, you can receive a fixed penalty notice of £1,000. If you do not provide an accurate contact detail declaration – or do not update your contact detail form in the limited circumstances where you need to move from the accommodation where you’re self-isolating to another place to continue self-isolating – you can be fined up to £3,200.

 

So, the guidance is loud and clear; breaching the rule requiring you to remain at home during the 14-day quarantine period will render you liable to a fine. But what about the situation of your child coming to visit or stay during this period without you needing to leave the home to facilitate this?

 

The section headed “How to self-isolate in your accommodation” states:-

 

You should self-isolate in one place for the full self-isolation period, where you can have food and other necessities delivered, and stay away from others. You must self-isolate at the address you provided on the public health passenger locator form.

 

This can include:

  • your own home
  • staying with friends or family
  • a hotel or other temporary accommodation

You should not have visitors, including friends and family, unless they are providing:

  • emergency assistance
  • care or assistance, including personal care
  • medical assistance
  • veterinary services
  • certain critical public services

 

On first reading it seems to be saying no visitors to the home, including family. However, it does not specifically set out what should happen to children as part of a child arrangements order.

 

It does however go on to state that:-

 

In England, you can only leave your accommodation in limited circumstances and while outside your accommodation, you should stay alert and stay safe. These include where:

 

  • you are travelling directly in order to leave England
  • you need urgent medical assistance (or where your doctor has advised you to get medical assistance)
  • you need urgent access to veterinary services (or on the advice of a veterinary surgeon)
  • you have exceptional circumstances (such as those described below)
  • you need to fulfil a legal obligation such as participate in legal proceedings
  • to avoid injury or illness or to escape a risk of harm

 

Arguably, in complying with a Court order for contact you are fulfilling a legal obligation. Is this therefore a sufficient exception to the rule? Arguably it could be. It then goes on to state:-

 

There may be other exceptional circumstances which may permit you to leave your place of self-isolation. You will need to consider carefully whether your circumstances are exceptional circumstances that require you to leave your place of self-isolation. It may be useful to seek advice from a medical or other professional to discuss your circumstances so that you can decide whether, for example, you have a health condition or a disability that would be seriously exacerbated if you were not able to leave the accommodation (and its outdoor areas) where you are self-isolating to take exercise. You are not allowed to change the place where you are self-isolating except in very limited circumstances, including where:

 

  • a legal obligation requires you to change address, such as where you are a child whose parents live separately, and you need to move between homes as part of a shared custody agreement
  • it is necessary for you to stay overnight at accommodation before travelling to the place where you will be self-isolating for the remainder of the 14 days
  • there’s an emergency

 

It therefore seems that for the purpose of a child moving between homes the rules in respect of isolation for that child do not apply and the child can move freely between homes. The rules however are not explicit in stating that it is fine for a child to move to the home of a parent who is in a 14-day quarantine. Just because it is not explicit however does not mean it is not permitted.

The guidance then goes on to state:-

 

The people you’re staying with do not need to self-isolate, unless they travelled with you or you develop symptoms of coronavirus.

 

Again this suggests that it would be acceptable for a child to freely move between homes; after all, had the parent been returning to the family home in which the child lives then of course they would be permitted to see them within the 14-day quarantine period.

 

That said, the guidance then goes on to state:-

 

Within your accommodation

 

The people you’re staying with do not need to stay at home, unless they travelled with you.

 

If you’re staying in a hotel or guest house, you must stay away from others who didn’t travel with you, so it’s important that you don’t use shared areas such as bars, restaurants, health clubs and sports facilities. Stay 2 metres apart from other people staying there at all times.

 

It’s important to avoid as much contact with other people as possible in your home in order to reduce the risk of transmitting coronavirus. You should stay in a well-ventilated room with a window to the outside that can be opened, separate from other people in your home.

 

So in the case of a returning parent to the family home, this seems to suggest that the parent should avoid their child; something practically unlikely. Should this extend to parents who don’t live with their children?

 

Having read and re read the guidance on self-isolation after a trip abroad, I have to admit feeling slightly lost and exasperated. I simply want to know whether non-resident parents can have contact on their return to the UK and it is far from clear or explicit.

 

Looking at the guidance specifically relating to children I have noted the following. In Guidance for parents and carers on supporting children and young people’s mental health and wellbeing during the coronavirus (COVID-19) pandemic updated 16th October 2020 it states:-

 

 – children under 18 that do not live in the same household as their parents or someone with parental responsibility can be moved between their parents’ homes to continue existing arrangements

 

The President of the Family Division also made it clear at the height of the Countrywide Lockdown back in March, that children were still permitted to travel between homes (Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders 24th March 2020). Whilst this guidance was provided prior to the quarantine rules coming into place, the spirit of what the Family Division intended remains loud and clear in my view.

 

So, in conclusion… we are dealing with shades of grey and interpretation. The rules in respect of the 14-day quarantine period do allow for exceptions which arguably could apply to child contact arrangements. The Courts and Government have also been clear in respect of Lockdown that child arrangements between households continue.

 

Most will of course recall the notorious situation involving Dominic Cummings in which he seemingly went against the rules for the purposes of childcare and it was deemed to be appropriate. Accordingly, when it comes to any law enforcement in respect of this issue one could assume childcare arrangements would be considered an exception or a reasonable excuse.

 

In so far as involving the Family Courts, the President was clear in his March guidance that parents should communicate with each other about ongoing Child Arrangements in the current pandemic and come to sensible and reasonable agreements if arrangements need to be adapted or changed. As a family lawyer, I know that isn’t always possible where relationships between separated parents are fractious. Ultimately in the absence of sensible agreement it seems the only current route is to have matters determined via Court proceedings. It is however reassuring that the key message from the President is 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.

 

Kate Kochnari

Stour Chambers

22nd October 2020

 

 

Kate Kochnari is a Family Law Barrister from Stour Chambers. If you would like to instruct Kate to advise or assist you in relation to the specifics of your case then please do not hesitate to contact clerks@stourchambers.co.uk

 

[1] BRIEFING PAPER Number CBP 8901, 15 October 2020 Coronavirus: Separated Families and Contact with Children in Care FAQs (UK)

 

 

This set comes recommended for its members' expertise in children and matrimonial finance matters. The children cases range across both public and private law work, and include those concerning non-accidental injury, sexual abuse and fabricated illness. On the financial side, the set's barristers demonstrate the ability to act in substantial financial remedies cases as well as Schedule 1 and TOLATA matters.

~ Chambers UK Bar Guide 2020

Stour Chambers has 'a range of barristers at different levels suited for different cases'. Members continue to be instructed in complex multi-day cases in the public law space, where it provides 'expert counsel' across Kent and further afield involving non-accidental injury, sexual abuse and extreme neglect. On the family finance front, Elizabeth Spence is a go-to barrister for high-value cases with issues of minority shareholdings and opponents deploying hostile litigation tactics.

~ Legal 500 Bar Guide 2021

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