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COVID-19 and the impact on family law

View profile for Karen Johnson
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COVID-19 and the impact on family law

The world is currently facing a global pandemic of proportions and impact that we have never seen in the modern world outside of the movies. The personal and economic consequences are immense, and the coming weeks and months will no doubt bring further challenges as our government seeks to control this threat.

We have seen the elderly and the vulnerable go into isolation, others urged to practice good hygiene and limit social contact, people who are symptomatic or live in the same household as someone who is symptomatic to quarantine themselves, schools closed until further notice and further measures being considered.

So, with this in mind, what is the impact of coronavirus upon families who are separated or going through separation and court proceedings?

What if I can’t attend a hearing as I have no childcare now my child is off school and grandparents are isolating?

The President of the Family Law Division released a briefing on the 19 March 2020. This confirmed that in order to keep the family justice system functioning as normally as possible, whilst at the same time protecting participants from infection and avoiding non-essential personal contact, the default position is that all hearings going forwards will be conducted remotely unless fairness and justice require a court based hearing and it is safe to do so.

This means that the majority of hearings will not require you to attend court and will instead be conducted remotely. This would apply to Directions and Case Management Hearings, most interim hearings, injunctions and appeals. Where hearings of this nature are already listed, then, provided the necessary arrangements can be made, they are to be conducted remotely.

Complex hearings which are lengthy, or require the court to hear evidence from numerous sources, are not likely to be dealt with entirely remotely. If there is a hearing listed which can not be heard remotely, then that hearing is to be adjourned and the court will list a directions hearing (which will be heard remotely) in order to consider the best way to conduct the hearing whilst keeping people safe.

The court is able to conduct a remote hearing in a number of ways. It may be by email exchange, telephone conference, the courts’ video link system, Skype for business, BT Meet Me or even FaceTime.

The responsibility for making the technical arrangements at least 24 hours before the hearing lies with the Local Authority in the case of public law proceedings, the Applicant’s solicitors if they are legally represented in a private law case, the Respondent’s solicitors if the applicant is not legally represented and the court if no one is legally represented.

Because you will not have to go to court, it shouldn’t matter if you have children in the home or are self-isolating. However, you will need to ensure that you are able to have some time away from anyone else in the house at the time of the hearing. In the event that you are not well enough to take part in the hearing, then you will need to inform the court and seek an adjournment.

Am I entitled to more contact now my child is off school?

No. Although the schools have shut, this is not the same as school holidays. Any existing child arrangements orders will still be effective and will set out what arrangements should be in place.

However, these are unprecedented times and will no doubt require us all to work together (separated parents included). The closure of schools is going to cause difficulties for parents who are still working. Effective co-parenting and sharing the additional child care responsibilities between parents may mean that an effective balance can be found between work responsibilities and parenting obligations. Start a discussion and see what you can do to help.

What happens to Contact Orders – what if I can’t/don’t want to send my child to court ordered contact because of Covid-19?

Any current child arrangements/contact orders remain effective and should be complied with unless you are able to show good reason why you can’t.

It is important to consider every case individually and to follow government guidelines. If you or the children experience a persistent cough or high temperature, then the person with the symptoms must self-isolate for 7 days and any members of the household must isolate for 14 days.

If the children are being isolated in this situation, then it is likely to be appropriate that the contact be suspended until the isolation period has passed. Equally, if the other parent is self isolating because of symptoms or someone in their household having symptoms, then it would be appropriate for the arrangements to be suspended.

For those who are vulnerable and self-isolating for their own protection, it may simply be necessary to review the arrangements for handover to ensure social distancing is maintained.

Will my divorce be delayed during the COVID-19 pandemic?

At this point in time, it is too early to say. These are exceptional and unprecedented times which are raising continuous challenges which will need to be overcome.

Depending upon how the infection spreads, it is likely that staff shortages will put a significant further strain on an already stretched legal system. The move to remote hearings, whilst necessary, is largely untried and untested. It is a huge change in the way in which justice is to be delivered and like all new things, is likely to take some getting used to.

However, the courts’ response to this crisis in stating that the default position is that hearings are to be held remotely means that, subject to staffing levels and technical availability, any delay should be kept to a minimum. It may in fact present the dawn of a new era, in terms of quicker and cheaper access to justice.

If you would like advice on the impacts of COVID-19 and family law then please email karen.johnson@birkettlong.co.uk or call 01206 217305.

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