COVID 19: Courts will hear applications for breach of maintenance or access

Written by
Caroline Fitzgibbon on
11 May 2020

Many parents have encountered difficulties in exercising access to their children.  In particular, those with court-ordered access can now bring an application to the District Court for breaches of those orders.  It is expected that any lost time will have to be made up.

Courts to finally hear access and maintenance applications

On 8th May 2020, Judge Colin Daly, President of the District Court announced that with effect from the 18th May, applications and hearings for breach of maintenance or access that have occurred during the emergency period (being the period of lockdown since March 2020) may be brought and heard in Court.  Prior to this, the court was only hearing “urgent applications” and breaches of access and/or maintenance were not deemed urgent applications.

Guidelines on access

On the 5th April 2020, the Law Society of Ireland had published guidelines on access during COVID-19.  It said that

  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 non-interaction 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.

The President of the District Court also said that consent orders that do not require the hearing of evidence may be applied for by email by the applicant’s solicitor exhibiting consent in writing from the respondent’s solicitor.  As such, where matters can be agreed between the parties, it appears that those terms can be put in writing and considered by a Judge and orders will issue where appropriate without the need for the parties or their representatives to attend court.

Mediation continues to be available and the family mediation service provides a free service available to any party in a separation/divorce/access/custody/maintenance dispute.