Laura Bond, an associate and family law expert at national law firm Clarke Willmott LLP, looks at the rules around Christmas bubbles and what they mean for separated parents.

Separated parents regularly report that they find it particularly difficult to discuss and agree arrangements for their children over the emotional Christmas period.  Even if the basic principles are not disputed, or are contained within a Court Order, the finer details – such as handover times, maintaining household traditions, seeing extended family, the giving of presents and stockings – is fertile territory for argument and dispute, meaning both goodwill and Christmas cheer are often in short supply. 

Inevitably, the looming cloud of COVID-19 this year is going to produce an added layer of tension and logistical difficulty for separated parents, not just in terms of interpreting new rules but also in weighing up the relative risks and benefits of their children moving between homes and trying to find a solution which keeps everyone safe and happy.  Some parents may have been hoping that the Government would help to ease the burden with its announcement on 24 November about the Christmas rules.  Unfortunately, many are likely to be left dissatisfied and disappointed by the guidance which leaves a great deal to individual discretion. 

The ‘Christmas Bubble’ and its impact on existing arrangements

The unified approach of England, Scotland, Wales and Northern Ireland permits most people to form an exclusive ‘Christmas bubble’ composed of people from no more than three households, between 23 and 27 December.  Children under 18 whose parents do not live together can form a ‘Christmas bubble’ with both parents. 

In theory, it sounds straightforward, but the reality is far from it.  Whilst the guidelines say that children ‘can’ form two Christmas bubbles it does not go as far as saying that they ‘should’ or ‘must’ do so.  The guidance document is peppered with warnings and emotional pleas to keep the bubbles as small as possible and to maintain social distancing to protect family and friends.  It also specifically states that families should consider alternatives such as the use of technology rather than bringing households together or travelling between different parts of the country. 

The reasoning behind the message is understandable, but it is inevitable that some parents are going to use it to justify children not moving between homes this Christmas.  In some cases, this will be agreed by all parties if there is a clear and obvious risk to health.  For other families, any change of existing or planned arrangements will be disputed based on differing tolerances towards risk.  Sadly, there will be some cases where the guidance is used deliberately to prevent contact with another parent. 

Right from the onset of the pandemic and during all periods of restrictions, children of separated parents have been allowed to move between parental households. Despite this, however, thousands of families across the country have had their child arrangements - even if longstanding or contained in a Court Order - suddenly disrupted or even totally disregarded.  For some families the changes, although regrettable, may have been justified and agreed but in many other cases the changes had been imposed by one party without the other’s agreement.  Some parents found themselves disagreeing on the level of risk created by moving between households and whether the benefit outweighed the risk.  Others reported a concerning regularity of the sudden onset of symptoms in the days before a child was supposed to be spending time with the other parent.    

It can be very difficult to determine whether the motivation behind any disruption to existing childcare arrangements is genuine, particularly for someone emotionally involved in the situation.  Some parents may not recognise or accept a different assessment of risk, even if that concern is genuinely held.  In other cases, one parent may be adamant that the other is exaggerating health concerns simply to reduce or prevent contact, perhaps as part of a wider campaign of parental alienation.  If it is the child saying they do not think it safe to see one of their parents, there may need to be an assessment of the reasoning behind this and parents may disagree on the extent to which the child’s views should influence the arrangements. 

What about existing Court Orders?   

An issue that parents and legal practitioners alike are having to grapple with is the status of Court Orders in these extraordinary and unprecedented times.  A Court Order will still apply so parties should comply with any existing Order if it is safe to do so.  Any failure to adhere to the terms of an Order is a technical breach.  However, a breach can be justified if there is a ‘reasonable excuse’.  Any application to enforce an Order at this time therefore must be considered very carefully, as genuine concerns about health or risk to a child will very likely fall within the scope of a ‘reasonable excuse’.  The Court’s paramount consideration is always the welfare of the child.  A judge dealing with any application will therefore have to undertake the difficult and subjective exercise of weighing up the likely benefits of the child spending time with both parents against the risks of doing so.     

How we can help

The issues outlined above demonstrate that attempts to agree arrangements for ‘Covid Christmas’ could be more fraught than ever, even if a party has previously been able to rely on a Court Order.  A dissatisfied parent has various options, so it is not the case that they have to accept any changes imposed by the other parent.   Anyone concerned about child arrangements over the Christmas period, or generally, should therefore seek advice at the earliest opportunity.  Our highly experienced team will be able to advise clients on their position and the options that exist to resolve the issues, which may include mediation or arbitration, as well as a Court application.       

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

For more information visit www.clarkewillmott.com