Access during Lockdown
Covid-19 has a major impact on the lives of separated parents around the country. If tensions are frayed between parents, Covid has made tensions even more frayed. During the lockdown restrictions, there is an increase in the breaches of Access Court Orders. This could be due to miscommunication of information or some parties attempting to deny one parent access as retribution and using Covid as an excuse.
The President of the District Court has issued a statement which makes it very clear that all Access Court Orders are to be adhered to as much as possible and should only be breached in extenuating circumstances.
The President of the District Court’s statement provides guidance for parents on 29 October 2020:
Even where there is an Access Order of the District Court, parents are responsible for making decisions regarding the safety of their children. You are expected to make sensible and reasonable decisions for your child’s safety. Parents are reminded how important access with their other parent is to your children. Access ordered by the District Court must be facilitated unless it causes a real and substantial risk to a child’s health or safety.
It is important to remember that travel restrictions do not apply to access visits, this is not a reason to stop access over this period of greater restriction. Remember too that travel for children between households can mean greater risk to the child or to other vulnerable family members.
You should be able to take a common approach between your two households to public health guidelines to make lives easier and safer for your children and your families.
Discuss with each other what the new and increased level of restrictions will mean for you and your children over the next 6 weeks. Ensure that access continues wherever possible and that court orders are followed. Remember there may be serious consequences if a parent is found not to be supporting access as ordered with the other parent. If it is not safe to continue access as ordered, then try to agree what access can happen safely. If you can both agree an alternative, then it is ok to do this until the level of restrictions falls back again when access as ordered should resume. Keep a note of your agreement in writing, in an email or by text.
If it is not possible to follow the court order remember there are many ways to keep in contact especially through phone calls and video chats, but keep in mind that children may have a short attention span for these activities and these are only a substitute for face to face contact.
It is not always possible for people to make these changes without help. The Legal Aid Board’s family mediation services remain open and are free, with no payment required. Mediation services are being provided through a blend of office, online and phone-based mediation. Mediation can help resolve issues with parenting plans, access and maintenance. For more information of services in your area go to www.legalaidboard.ie. For Dublin, email: dolphinfamilymediation@legalaidboard.ie or Phone: (01) 672 5886.
If you cannot agree an alternative or come to a solution, you can make an application to your local court office for a court hearing to vary or change the access order.
There are additional resources available on UCC’s website in regard to this matter, which is outlined very clearly and comprehensively. This is available at https://www.ucc.ie/en/covid19familylaw/custodyandaccess/#2-court-applications.
The Courts services also outlines information on all other aspects of family law and how they will work during the restrictions this available at https://www.courts.ie/family-law.
The Law Society has also outlined their guidelines in regards to access during the Covid-19 restrictions.
Guidelines for Access during Covid-19
The following guidelines are to assist parents and practitioners in relation to access, in light
of the restrictions brought in to tackle Covid-19.
These guidelines 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.
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 or
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 noninteraction 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 on https://beta.courts.ie/content/find-us
This guidance has been prepared by family law practitioners and endorsed by the Family and
Child Law Committee of the Law Society, the Family Lawyers Association and the Bar
Council.
Practitioners will appreciate the guidelines are intended to constitute best practice guidelines
rather than specific client advice.
Sunday 5 April 2020