Access to Children during Lockdown

So far, unlike a lot of major cities in the world, Hong Kong has been lucky for avoiding a lockdown during the pandemic. However, with the recent change of the pandemic situation in Hong Kong, a lockdown does not seem too far-fetched anymore. Although the Hong Kong government has recently announced that it currently does not have the infrastructure to roll out a city-wide lockdown, it is unknown if and when such a lockdown will take place.

Looking at the experience from other countries in the family law perspective, problems are likely to arise during lockdown when it comes to access to a child for divorcing or divorced parents. It would be helpful to be prepared and learn from others’ experience before a lockdown occurs. We have summarised the access arrangements in the UK, Australia and Canada during their lockdown periods.

United Kingdom

Minor children under 18 are essentially allowed to be moved between their respective parents’ homes, despite the lockdown requirements. This should be subject to both parent’s agreement, after having considered all of the circumstances, including but not limited to their children’s health, the risk of their children becoming infected during handovers and whether there are any vulnerable individuals in the other parent’s household.

Guidance was provided pursuant to the “Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders” (the “UK Guidance Note”), which was issued by the Rt. Hon. Sir Andrew McFarlane on 24 March 2020. The crux of the UK Guidance Note is that during these unprecedented times, parents should work together to make safe and sensible arrangements for their children.

If parents are able to agree on the children being moved between their respective households, such an agreement should be made in writing. Logistics should also be discussed. For example, it would be best if direct transportation from one household to the other is arranged. If this is not feasible, detailed planning in respect of the mode of transportation and a safe handover location will be necessary. Parents should communicate freely with one another about their concerns, and what they believe are beneficial and viable solutions.

If parents are unable to agree on an access arrangement, alternative arrangements shall be discussed and facilitated in order for the children to spend sufficient time with the other parent by way of electronic means, such as Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, at least by telephone.

Australia

In Australia, different states exercise different restriction requirements. One similar vein throughout Australia, however, is that parents are expected to comply with Family Court orders in relation to parenting arrangements. This includes facilitating time being spent by their children with the other parent and of course, ensuring their children’s safety and wellbeing.

Many states specifically set out exemptions amidst the restriction requirements to allow for access arrangements. For example, in June 2021, given the then new Delta strain, those who lived or worked in Sydney, Waverley, Randwick, Canada Bay, Inner West, Bayside and Woollahra local government areas were faced with mass restrictions from leaving their homes, unless they had a “reasonable excuse”.

Pursuant to Schedule 1 of the Public Health (Covid-19 Greater Sydney) Order (No 2) 2021 [NSW], a “reasonable excuse” to leave one’s household included:

“For children who do not live in the same household as their parents or siblings or one of their parents or siblings—continuing existing arrangements for access to, and contact between, parents and children or siblings”

Ontario, Canada

In Ontario, despite the lockdown restrictions, the Ontario Superior Court of Justice (Family Court) set out in Ribeiro v. Wright, 2020 ONSC 1829 that:

“A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.”

In the case, the father had filed an emergency notice of motion, stating that the mother was suspending his physical access to their nine-year-old child. The mother claimed that she was practicing safe social isolation and did not want their child leaving her home for any reason.

The Judge directed that existing parenting arrangements should continue unless one of the following situations apply:

1. The other parent is not willing to adhere to, and is not willing to provide their assurance they are adhering to, current COVID-19 safety measures including strict social distancing, use of disinfectants, compliance with public safety directives, etc.;
2. The other parent is (or should be) self-isolating for any reason, e.g. due to travel, illness or exposure; or
3. The other parent has significant personal risk factors, e.g. due to employment.

The Ontario judge urged the parents to work together to balance their child’s needs to have the emotional support of both parents during this period, with their child’s physical health and safety. Parents need to be flexible and be willing to consider alternative arrangements in order to address COVID-19 concerns.

It is unknown if and when Hong Kong will experience a lockdown. In this situation, it is hoped that the Hong Kong government will consider the approach adopted by different jurisdictions and allow access arrangements to continue so that it will not be used by one parent to restrict and obstruct access of the other parent. We look forward to further updates on this space.