Family Law Update: Separation and Lockdown
There has been a lot of contradictory information in the past 9 months as all involved in family law try to understand how lockdowns affect both clients and professionals.
There are few absolute rules but over time some things have become clearer and so in today’s article, Kevan Hankinson is taking a look at some of the different areas of family law and how they have been affected.
As with everything related to the law and the lockdown, it has been a rapidly changing picture and guidance is still potentially going to be revised and updated, as is information about what services are available and how the court is coping. The court has been heavily affected, but it is still functioning. Face to face hearings at the court itself are rare and usually only limited to final hearings. Most cases are dealt with by telephone conferences or video calls.
Most support services (like the court advisory service, CAFCASS) are continuing, and many contact centres are still open, but again face to face meetings are only when strictly necessary.
At Butcher & Barlow, we are still able to offer a full service of advice to all our family clients via telephone and video calls and we are conducting court hearings and making applications, via telephone or video conference as needed.
Our solicitors, advisors and other staff are keeping up to date with developments and adapting best practice to the new circumstances the lockdown has created and to provide support to anyone needing help with a family problem at this difficult time.
The good news is that, even in the lockdown, there is help and advice available.
Coronavirus poses everyone a set of complicated questions about balancing many risks but for some people those risks are made far more dangerous and difficult because they are in a relationship that is abusive.
There are a lot of myths that abusive people make use of – that if you leave you give up your rights, that the authorities won’t believe you, that they will make you look bad in court, or you won’t be able to see your children…and many more.
Coronavirus has perhaps added another one – you can’t do anything because of the lockdown. That is not true. The Police are still there and they will still respond, and you should call them on 999 if you fear for your safety or that of your children.
Domestic abuse charities are still operating and many are still providing refuge services and help and support is there through the Domestic Abuse Helpline operated by Refuge, and local organisations like Safenet.
The court is still dealing with applications for orders to protect victims of abuse, both non-molestation orders (that prevent someone behaving abusively) or occupation orders (that remove someone from a home). If you need help with those applications solicitors are still available, as is legal aid and the legal aid agency is being less strict about the evidence it needs in order for legal aid to be granted.
Be safe; you can still get help if you need it.
Resolving disputes around children can be hard at the best of times, and the lockdown has given parents who are trying to be obstructive a very easy excuse to be even more difficult. A time of national emergency, with people worried about the health of themselves, their children and older family, makes concerns about arrangements for children more complicated than ever.
On the other hand, some parents with genuine health concerns or issues are being pressed by unhappy and sometimes even abusive former partners who are not interested in listening to problems and worries the viral outbreak has caused.
The position has been confusing. Earlier in the pandemic we had a government minister, Michael Gove, suggesting on the news that children must not move between households. Within hours, that was corrected, and government advice was that spending time with parents was a legitimate reason for children to travel. This is still the government’s guidance – that contact between parents is legitimate and can continue.
After that, the most senior family judge issued further clarification – that just because children can see both parents doesn’t mean that they should, and that if a parent is worried that has to be considered.
However, the guidance makes clear that the court may end up looking back on what parents did during the lockdown with a critical eye. It remains to be seen if the court can really effectively deal with allegations of parents hiding behind the virus crisis to withhold children from contact, but it is reasonable to think that there are some cases where the harm that refusing contact will do to a child’s relationship with the other parent will be so significant that it will change the outcome of the case.
As time has passed, and the pandemic has become more than just a short term problem, the arguments for trying to carry on with arrangements rather than stop them has become more clear, but there are always going to be situations, for example where a positive test means either household has to self-isolate, where some flexibility will be needed.
Regardless, it is clear that just stopping a child seeing a parent isn’t acceptable where there are other alternatives to keep in touch. The acid test of how genuine one parent’s concerns about the virus are when changing or even interrupting time with the other is likely to be how realistic their worry was, but also how much effort they put in to keeping the child in touch with their other family by different means. Did they organise apps and video calls all the time, encourage the child to call, consider wider family on both sides?
It cannot always be assumed that video calls are easy to arrange and not intrusive or a source of conflict. Sadly they can be, and every family will have different challenges to face. Unfortunately there are going to be situations that cannot easily be resolved regardless of the levels of goodwill or patience available. Contact over the internet is much harder to arrange effectively for very young children, and where the relationship between parent and child was already strained, the support services available, from contact centres to CAFCASS to mediators, are also having to use video or other means that might not be as effective as face to face contact.
Possibly most restrictive of all are arrangements for children in the care of local authorities, whose time with parents often revolved around social services run contact centres.
The court is still taking on children’s cases although understandably on a strict priority basis, with cases where children are at risk being the most likely to be considered. Although even here, the court has struggled to arrange hearings, and a debate took place last year about how fair and appropriate remote hearings (over video or telephone) can be. Recently decided cases have said that the prospects for each hearing should be on its merits but emphasis is now firmly that the court has to make do, and make progress, as, sadly, the pandemic is no longer just a short term interruption where decisions could be put off until afterwards.
The best advice in general terms is to try to stay positive, be willing to be creative and maybe willing to take up less than ideal suggestions that keep a child in touch with both parents and their families wherever reasonable to do so. The courts have never been quick to assume that just because a parent accepts a restriction that they are somehow conceding the argument that the restriction is necessary in the first place – normally any contact is better than none.
Parents do to have think about what all this means for a child. Arguments that might have seemed very important may now look less critical; hopefully most of us will not have deal with illness ourselves or the loss of a relative, but children too are feeling the impact and the worry that coronavirus is creating and need help and support too, and that will often be exacerbated if they lose touch with a parent or other family member.
There are many sources of good parenting advice, from CAFCASS, mediators and various other parenting and support networks. CAFCASS have set up a hub for separating parents to get advice, https://www.cafcass.gov.uk/2020/04/28/co-parent-hub-launched/ .Every case is different but talking over the issues can help get some perspective; whatever difficulty a parent faces, it is unlikely they are on their own.
The coronavirus outbreak has caused problems both in terms of the financial remedies court being able to process its work, but also changes to the facts upon which finances cases rely – valuations of many resources, from property to pensions, and especially businesses, are now open to question. In some cases updates and financial advice are hard to come by as surveyors are reluctant to enter houses, and pension providers have struggled to send out information.
For those in the middle of (or thinking of starting) the process of resolving finances after a separation there is a complicated decision to be made as to the risks of pressing on now against the risks of hold back and waiting until the position is clearer. The court has got used to dealing with cases remotely, by telephone or video, and again as the pandemic went on, there has been a stronger sense of needing to get on and make what progress can be made, even if the circumstances are less than ideal.
Some of the more apocalyptic scenarios have not (yet) materialised – in terms of very high unemployment or dramatic reductions in house prices or stocks, but 2021 is likely to yet more economic uncertainty that will be a worry in financial cases.
All finance cases involve educated assumptions about the future prospects of the parties – what job they will have, what they can earn, how big a mortgage they can get, what they will retire on. Making those assumptions has become harder.
For some people with assets that are not likely to be affected (like government pension schemes for example) and who have secure employment, the risk of settling or proceeding now may be much less, and the need to get on and sort things out are a higher priority. For others, it may be unfair or risky to proceed to a settlement or final hearing now.
There has been speculation that decisions about finance might need to be more flexible that in the past or that assets might have to continue to be shared for some time longer than normal, in order to allow them to recover their value, but that will mean thinking about the rules for such longer term arrangements.
It has also been suggested that other forms of resolving financial disputes should be considered and prioritised, ranging from mediation to ‘private’ financial dispute resolution (where the parties agree a suitably qualified person to act the way a judge does in early court hearings, discussing the case with the parties and giving a view or recommendation).
For everyone dealing with the financial aspects of a separation, but especially now that there may be delay in reaching a resolution, it is important to make sure that your Will is up to date and your assets, especially pensions, are assigned to the right people. This might sound morbid, and for most people even with the pandemic the risk of death is not high, but the law makes assumptions about married couples and those who own joint assets (that they will want their partner to receive them on death for example) that just do not apply after separation, and it is something easily overlooked, as are partners or spouses rights to assets like pensions.
It has rarely if ever been more true that the approach to finances that is the best possible approach in some cases would be disastrous in others, that hard and fast rules are few and far between and good financial and legal advice is key.
Butcher & Barlow LLP
Butcher & Barlow remain available for advice and guidance on any existing or new matter and please do not hesitate to get in touch via email@example.com or directly with your legal adviser. Kevan can be contacted on 07760 669263,
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