When Leo Varadkar made the announcement introducing the first lockdown, it caused considerable confusion and worry amongst separated parents. The Courts were closed and only urgent applications regarding childcare and domestic violence were heard.
Access or breach of access orders were not considered urgent and some parents did not see their children for many weeks. The Courts and practitioners have learned from the first lockdown, and matters relating to access and breach of access, have massively improved.
The President of the District Court and the Law Society have issued statements and practice directions to help deal with access issues during the Covid 19 pandemic and in the enhanced restrictions. Unreasonable withholding or refusal of access is considered an urgent matter and can be heard by a Judge during the level 5 restrictions.
Firstly, if there is a Court Order for access in place, this must be adhered to unless in exceptional cases. An example of an exceptional circumstance would be if either party had tested positive for Covid 19 or had to self-isolate.
The Judiciary have urged that if an informal arrangement (no Court order) is in place then this should be continued.
If an issue arises regarding access during this time, parents are strongly advised to try and resolve the matter between themselves. It is advisable for this communication to take place via text message or email, as this maintains clarity and avoids confusion.
If parents cannot reach an agreement, then the next option is to contact their Solicitor. Your Solicitor can enter discussions on your behalf with the other parent’s solicitor to try and reach a workable solution for everyone involved. If an agreement cannot be reached, an application can be made to the District Court to deal with the issue of access.
Travel restrictions do not affect access. If a parent must move outside their 5km radius to drop their child off or to collect from access, then this is permissible. The parent should have a copy of the Court Order or a letter from their Solicitor explaining the access arrangements. So, there is no need to worry about leaving your County during the enhanced restrictions. It is unclear how this will affect international travel. However, if there is a Court Order for access this is certainly a permissible reason to allow international travel. But parents should look at how safe or practical this is for the child. With quarantine and/or self-isolation rules coming into force in most Countries, does it make sense for the child and an accompanying adult to travel? Can the parents come to an alternative arrangement for access?
Covid 19 and this state of lockdown have added to already stressful situations. It can be very difficult to co-parent in ordinary times, never mind with the added pressures of Covid 19 restrictions. However, it is crucial the best interests of the child or children involved are considered. Access is the right of the child to see their parent. It should only be limited or modified in the most exceptional of circumstances. If a parent unreasonably withheld access or used Covid 19 as an excuse to limit access, they could find themselves on the wrong side of the Judge once the matter is brought before the Courts.
The main advice I give clients is for them to try and work together to deal with access. If a party is self-isolating or if a child is immunocompromised and cannot travel for access, then use social media, zoom or WhatsApp to keep in touch. Suggest a longer period with the other parent once the Covid 19 situation has improved.
If someone paying maintenance has lost their job or on reduced hours due to Covid 19, this will affect their ability to pay maintenance. If you find yourself in this situation, it is advisable to contact the person who receives the maintenance to let them know. The person who pays the maintenance should offer a sum which they can afford. So, both parties can come to an arrangement that a reduced amount can be accepted for a period. This is the advice whether the amount of maintenance is Court ordered or agreed between both parents. However, if the maintenance is Court ordered, any amount not paid can be treated as arrears of maintenance and a timeline should be suggested or a payment structure set up to make up for these arrears once the situation improves.
The Courts treat non-payment or breach of maintenance as an Urgent case. If someone stops paying maintenance, then an application can be made for enforcement. However, if the person has lost their job due to Covid 19, this could be treated as a reasonable ground to reduce or vary the maintenance.
The key piece of advice is for people to communicate and discuss the matters between each other. Try again to keep a record of the communication. If the relationship is particularly acrimonious, this communication could come from your Solicitor.