Family Law and Coronavirus: A guide for separated families
31 Mar 2020
The new restrictions in place for the UK population have led many separated parents to worry about seeing their children during this period of self-isolation. The official announcement from Boris Johnson did not address the many separated families in this country, causing many parents to worry that they might not see their children until this pandemic is over.
We cannot know how coronavirus will play out in the long term. However, we do know what it entails for separated parents and their rights to see their children during lockdowns in a time where leaving your home can only be for ‘essential reasons.’
Whilst we can only hope that this period of uncertainty is short-lived, we have provided a quick, useful guide on the official Government advice for separated families, how Family Law might change and how Family Court hearings will proceed.
The Official Government Advice
We’re sure that you have already seen the tougher measures put in place to slow down the spread of COVID-19. The only time that people in the UK can leave their home now is:
- To shop for basic necessities such as food or medicine – this should still be as little as possible
- One form of exercise a day such as running, walking or cycling
- Travel to and from work if the work cannot be done from home
- To care or help a vulnerable person
Many separated families and single parents were painfully aware of an exception that was missing from the above. What about the children of divorced parents? A mainstay of separated families are the agreements for children to spend allocated amounts of time with both parents separately. With a global pandemic and national emergency, this makes logistics more difficult for families where not all members live under the same roof.
The official government advice is that children under 18 whose parents are separated can be moved between parents’ homes during this lockdown. The expectation is for parents to act sensibly and safely. The guidance provided by Rt. Hon. Sir Andrew MacFarlane (President of the Family Division and Head of Family Justice) is that an assessment ought to be made of the circumstances to include:
- Child’s Present Health
- Risk of infection
- Presence of any recognised vulnerable individuals in one household or the other
However, where does this leave separated families where the split and both parties are not amicable? These present significant legal challenges for family lawyers.
How Family Lawyers are addressing the pandemic
Since the lockdown was implemented in the UK, we have seen an increase in enquiries from parents whereby their ex-partners have refused to let their children see them. Whilst this can be down to many different circumstances, some parents are now using the lockdown as an excuse and stating that a child seeing their other parent is not deemed as ‘essential’.
There has also been a rise in enquiries from parents that have become recently aware that their ex-partner has moved to another area of the country with their children without notice, such as a parent who lives in London moving to the countryside with their children in order to practice more effective social distancing.
The landscape for Family Law in light of the pandemic is multi-faceted and everchanging. As lawyers, we need to be sensitive to each situation. Whilst one party might see their ex-partner as being spiteful and inconsiderate, the ex-partner could also be legitimately afraid for their children to leave one home altogether. Due consideration will be given to the complete circumstances of each case and if it is evident that contact is being thwarted then recourse to the courts is still available.
As the government prepares the UK for the potential lockdown to span over a few months, we know that the Ministry of Justice and Judiciary are working on further detailed guidance for separated families. In the meantime, if you are a parent who is struggling to reach an agreement to see your children, it is important to maintain communication through video calling such as FaceTime to ensure that a lack of communication cannot be used against you at a later date. It is very important to maintain good communication with the absent parent so that sensible and practical steps can be considered and reviewed on an ongoing basis as the position is constantly changing.
We foresee a minority of parents that might try to out-manouvere Family Judges by denying contact on the basis of self-isolation with their children. Though this pandemic changes day by day, we can expect a firm Judicial response – especially if their denial of contact feeds into a history of difficulty towards creating an amicable co-parenting relationship with the other parent.
Any temporary changes to the arrangements for the children should be recorded in a diary or note together with an explanation as to why the change was implemented. This will prove helpful in the event that any temporary changes are sought to be made permanent after the pandemic.
Ultimately whether an application is made after the pandemic or during, it is stated by Rt. Hon. Sir Andrew MacFarlane (President of the Family Division and Head of Family Justice) that ‘the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family’ He also stated that ‘ The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.’
There is a concern on whether or not Family Courts will be able to handle the inevitable influx of applications from separated parents regarding breach of contract terms. Luckily, as of the 19th March 2020, the National Guidance for the Family Court has advised to “keep business going safely” and that all Family Court hearings should be undertaken remotely via:
- Video or Skype
Where the requirements of fairness and justice require a court-based hearing, and if it is safe to conduct one, then a court-based hearing could take place. The Family Court Division recognises the public need for the Family Justice System to continue functioning as normally as possible but also in accordance with government guidance. Whilst it might take a while for the Judiciary to get used to this new way of working (that all sectors are having to undergo), it would be unthinkable to pause all hearings and cut off access to justice. If court business is adjourned, we could see severe backlogs and delays in the months following the lockdown.
At Richard Nelson, we have all the facilities to continue working for our clients without requiring an office base. We can conduct remote meetings and for any new clients we can undertake ID checks via our Electronic Verification System. Therefore there are no obstacles in obtaining urgent advice from our Family team.
How Family Law might change during this pandemic
So how can we expect Family Law to change during this pandemic? Firstly, we might see court proceedings delayed if family law practitioners cannot bring their client meetings online. Whilst we have the facility to do this, this may not be true for the other parent involved in any action. For example, families that do not have computers or mobile phones or have fallen sick themselves will be more difficult to contact. If there are firms that still operate in their office, you might find clients reluctant to travel. With flights cancelled and travel bans across the globe, there is also the issue of parents and children stuck and thus failing to comply with current court orders or accessing via remote methods presently listed hearings.
The pandemic has created a challenge to the whole Judicial system and many matters are presently being considered, to give an example we list a few:
- How to issue applications without risking infection to staff members?
- How to ensure the security of the computer systems at the court?
- How to enable interpreters in the process?
- How to arrange remote hearings for litigants in person?
- How to prevent unauthorised recordings of any court hearings?
There are many matters to be considered and if you have a hearing listed soon then it is important to keep in touch with your solicitor and court to ascertain how your hearing will be addressed.
If you require legal advice on your rights to see your children during this unfolding pandemic, get in touch with our specialist Family Solicitors today for a free callback.