Your legal rights over child access this Christmas – Ellie Hampson-Jones

This is adding further strain for separated parents making childcare arrangements – especially as we approach the festive period. Christmas is a notoriously stressful time of year for any family. It can be even more difficult to navigate where parents are separated and are trying to create the best possible experience for children who will be spending time between each parent’s home.

Throw into the mix the extra ingredients of a global pandemic on a never seen before scale and, quite clearly, the recipe is less Nigella and more Kitchen Nightmares.

We found that contact arrangements during the autumn were a more contentious issue for parents than they were last year, likely as a result of the pandemic. In September 2020, the court received 4,262 new private law cases. That is up 540 cases on the same period in 2019.

Where there is a dispute as to how Christmas will be spent, there may already be a court order in place setting out arrangements. What does the pandemic mean for these plans?

If there is already a court order in place setting out how the Christmas holidays should be shared, the guidance from the Family Court says: Despite the national pandemic, even if the letter of the order can’t be followed, the spirit of it should be.

Children are allowed to move between homes regardless of lockdown rules. This is an express exception. That is not to say that a child must move. If parents cannot agree to vary a court order, one parent may remain sufficiently concerned that it is not safe for a child to move between homes.

If this happens and a resolution is required with the assistance of the court, that parent will be scrutinised as to whether or not they have acted reasonably and sensibly in the light of the official advice.

We can’t agree plans for Christmas – what should I do?

First, you may want to consider whether mediation can help bridge the gap. You can’t bring an application to the court unless you’ve explored it as an option.

If mediation does not work and you are looking for a more binding solution, consider whether arbitration might be right for you. Arbitration is a privately-funded option 
whereby you can choose your judge and the date of your arbitration.

If mediation or arbitration are not appropriate, you will need to issue an application at court. If the issue requires urgent attention, this will be your fastest route. However, the pandemic has created a huge backlog of cases, so there is a risk that your case might not be heard for eight to 12 weeks.

Who can (currently) form part of your household “bauble” (the Christmas bubble equivalent)?

The term “bubbling” is one we all now know, but may still be slightly confused about.The Government was allowing people to create a bubble of up to three households between December 23-27. That is now restricted to just Christmas Day.

As well as this, there are two key “bubbles” concerning children:

1. Childcare. There are legally permitted childcare bubbles. Aside from registered childcare, there is also a separate exemption for informal childcare, where one household provides informal childcare to a child aged 14 or under in another household. This must, however, always be a bubble between the same two households.

2. Support. If you’re in a single-adult household living with children (who were under 18 on June 12, 2020) you can form a “support bubble” with another household, as long as they are not part of a support bubble with anyone else.

If you are not a single adult household, you can still form a support bubble if needed with a single-adult household; again, this is in addition to the one that includes your child’s other parent.

It is important to remember that where children do not live in the same household as both of their parents or guardians it is still permitted for them to spend time with each of them and to move between the two households. It is also permitted for there to be contact between birth parents and children in care.

Ellie Hampson-Jones is a family 
lawyer based in law-firm Stewarts’ Yorkshire office.

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