Coronavirus in the Family Law arenaDate: 23/03/2020 Type: Articles Topic: International |
The Coronavirus pandemic has no doubt created fear around the world. With school closures, travel bans and the lockdown of many cities around the world, many of us are left wondering where the safest place for us is to ride out the coming months. Whilst it is completely understandable to want to protect ourselves, our families and our children, if looking for a safe haven results in you removing your children from their country of residence, without the consent of the other parent, you could find yourself facing civil and criminal repercussions. Naturally there are other concerns, such as attending hearings, engaging in expert assessments or facilitating contact between your child and the other parent, given social distancing and quarantine measures have become insisted upon by the government. Here are some key points, you should be aware of during this pandemic.
Firstly, a parent who makes a unilateral decision to take their children out of a country or to keep their children in another country beyond an agreed period of time, without the other parent's consent, will commit a criminal offence in the UK. The offence carries a prison sentence of up to 7 years. The risk of harm to children being abducted are higher than ever, given that the Coronavirus pandemic poses a risk to public health and there are a significant number of travels bans and restrictions in place in number of countries around the world. Parents who abduct their children or wrongfully retain their children in another country are usually strongly criticised by the Court in future Court proceedings. It is unlikely the Court will not sympathise with an abducting parent, even if they allege, they were trying to protect the children from exposure to the Coronavirus as unfortunately the disease has now spread very much globally. You are strongly advised to seek legal advice from a specialist international family lawyer if you are planning to move your children to another country before taking any steps.
Secondly, if you seek to relocate abroad with the children, you will need the consent of the other parent if they share parental responsibility with you. If you are considering permanently relocating with your children to an area of the world which is affected by the Coronavirus, it may be pragmatic to review the timing of those discussions with the other parent until the Coronavirus situation becomes clearer. This will assist in ensuring your relocation proposal is well received by the other parent, as this is a matter that is usually very contentious. If you are keen not to delay the matter, and wish to proceed with a court application, you should set out clear additional plans for the relocation, including what the situation on the Coronavirus is in that country, the risks to the children and how you will ensure the children are protected from the Coronavirus. The Court will no doubt be concerned of any relocation to a country where there are very high number of Coronavirus cases, where there are school closures nationally for an indefinite period of time or where there are travel restrictions that will cause difficulties for the left behind parent to have any direct contact with the children.
Thirdly, the Coronavirus is likely to have an impact on your children's contact with the non-resident parent, particularly if there are travel restrictions and contact takes place cross borders. This may result in disputes between you and the other parent. It is important now more than ever to try to resolve disputes through discussions and mediation to ensure that Court services are not overburdened during this unprecedented time particularly as Courts will want to ensure there is sufficient capacity to deal with urgent cases first. If your disputes are that the other parent is not facilitating contact due to their concerns of the impact of Coronavirus on the children, you should take a moment to consider whether those concerns are real and whether you can offer a way to mitigate the risk of harm on the children.
If the disputes in regard to contact cannot be resolved through mediation you may consider issuing court proceedings. Before turning to the Court, it is important to bear in mind that a Judge is very likely to take into account the impact of the Coronavirus on the children. For example, if you want to take the children on holiday to a country that has a significant number of cases of Coronavirus or there are very stringent travel restrictions in that particular country, the Judge may take the view that it is not in the children's best interest at this time. Similarly, if the resident parent is not willing to facilitate contact due to concerns about the children being exposed to the Coronavirus, whilst the Court may agree with this if the risk is proved particularly high for these children specifically, it is likely that the Court will want alternative contact arrangements to be offered to ensure the non-resident parent does not lose out on spending quality time with the children. It is important for parents to take a sensible and reasonable approach as the Courts will likely hold the view that as the Coronavirus has been declared to be a global pandemic, everyone is at risk of exposure.
If there is a Court Order already in place, you must be aware that if you fail to comply with the terms of the Court Order, you will be in breach and the other parent may issue enforcement proceedings. If you feel that you can no longer comply with an existing Court Order for example, to facilitate contact between your children and the other parent due to the Coronavirus, you should obtain tailored legal advice from a specialist in field as you risk being served with enforcement proceedings by the other parent. All efforts should be explored first to identify if safe contact can be arranged. If both parents agree for contact to be postponed, alternative contact arrangements should be agreed where possible, to make up for the missed contact. In addition, where possible, discussions should be had about maintaining contact by means such as telephone, post, text message, email, social media, Face Time, and/or Skype in the interim.
The Court will always make a decision based on what is in the children's best interests. Whilst the Court is very likely to take into account any risk of harm on the children by the Coronavirus, the Court will not negate that it is also in the children's best in interest to have contact the other parent. In the circumstances, it is likely that the Court will be persuaded for contact to proceed if clear protective measures can be put into place to limit the children's exposure to the Coronavirus and so this should be explored before placing the matter before the Court.
Fourthly, given the economic difficulties arising from the impact of the Coronavirus, if you have any ongoing child maintenance disputes with the other parent, it is prudent to review whether there is currently any potential financial benefits to seeking costs. Has the other parent's financial circumstances changed significantly to their detriment? If yes, it may be prudent to re-evaluate the timing of any discussions and issuing of any new child maintenance applications until their financial circumstances are clearer or improved. If you are keen to press on with any child maintenance, you may want to re-evaluate the finances you seek to ensure that your application is realistic in light of the other parent's new financial circumstances. For example, if the other parent is employed by a business sector affected by the Coronavirus, their future employment, income and risks of long-term unemployment will be considered relevant by the Court in child maintenance applications. If the other parent had significant capital, the value may have reduced since the Coronavirus pandemic. The value of any assets is taken to be that at the date of any settlement or Court Order. If it is likely that the value of the asset or income will recover following the end of the Coronavirus pandemic, then it will need to be decided whether the case should be concluded now or put off to see how the market reacts once the Coronavirus situation is clearer. If you have already secured settlement or Court Order in respect of child maintenance and the value of assets or income has changed since, due to the Coronavirus, based on the current law, it would be very difficult for a party who has been disadvantaged by the change, to persuade the Court that the case should reopen.
Finally, if you currently have ongoing court proceedings or intend to issue court proceedings during the Coronavirus pandemic, you should be aware that the hearings are likely to take place remotely through oral hearings. This could be via telephone or video link. Guidance has been handed down by the President of the Family Division for all hearings where possible to take place remotely rather than by personal attendance at Court. It is hoped that this will ensure more people's health is protected during this pandemic. It is also hoped this will assist and protect those who are unable to travel to hearings due to travel bans or restrictions or due
to being at higher risk of contracting Coronavirus.
Court proceedings in respect of children are held in private. Therefore, if remote hearings take place, the Court will want reassurances that no unauthorised persons will be present during any part of the hearing. The Court will also want assurances that the hearing will not be recorded. Those who do not comply with this, risk being held in contempt of Court and if found guilty, they may face fines, penalties and/or imprisonment.
There may be some cases where the Court feels that a remote hearing is not suitable and personal attendance is required or necessary. This could be where parties need to give oral evidence or cross examination needs to take place. If this is the case, you should ask the Court to review whether personal attendance can proportionately be justified in the circumstances or whether an adjournment is necessary until the situation with the Coronavirus becomes clearer and safer.
These are unprecedented times and in all aspects, we are walking in unknown territories so we do not have the support of caselaw to predict the decisions the Court may take on cases impacted by the Coronavirus. It is safe to assume, that the Courts will be sensible, reasonable, and will err on the side of caution when it comes to public health. In proceedings concerning children, the Court's paramount consideration will always be what is in the children's best interest. Therefore, it is important that you take proportionate and reasonable steps during this pandemic to ensure children are not being placed at higher risks of harm through unnecessary travel across countries. But at the same time, parents are discouraged from using the Coronavirus pandemic as a way of unreasonably withholding or suspending contact between the children and the other parent otherwise they risk being criticised by the Court for their actions, if found unreasonable.
The International Family Law Group LLP
© March 2020