Written by Fiona Forsyth

Senior Associate at Russell-Cooke

Fiona has exclusively practised family law for the last 15 years. She advises on all aspects of private family law with expertise on resolving financial and children issues following relationship breakdown. She has a particular interest in international child relocation cases.

The Coronavirus pandemic has affected daily life for us all. At the time of writing, the UK has been in lockdown for some 11 weeks. Even with some relaxation of these measures coming into play, news reports abound that there will be “significant” social distancing until there is a vaccine which, even with sustained global efforts, is unlikely to be before the end of 2021.

Times of crisis bring out the best and the worst in us. Family relationships are no exception. Some will feel unified but, for others, the prevailing uncertainty will mean separating and separated families are under increased strain, particularly when dealing with arrangements for their children.

The law says that if a parent wishes to move abroad with their child, then the other parent must agree to the relocation, failing which the court’s permission must be sought.

For many the current crisis is a wake-up call: people are taking stock. Priorities and plans are changing for “when this is all over”. Thoughts turn to what that “new” future may look like, where it will be and with whom.

For international separating families there has always been the potential additional issue of one parent wishing to relocate with the children overseas when the other does not. Is living through a global pandemic going to focus minds and cause international parents now more than ever actively to consider (or indeed reconsider) a relocation overseas?

The law says that if a parent wishes to move abroad with their child, then the other parent must agree to the relocation, failing which the court’s permission must be sought. At the best of times these are difficult and emotionally charged cases as by their nature there is usually a stark binary outcome: One parent goes with the child; the other stays behind.

In reaching a decision, the court must ask itself if the proposed relocation would be in the best interests of the child, (the welfare of the child being the court’s ‘paramount consideration’). In practice, this is a delicate balancing exercise, a holistic approach, looking at and exploring all the competing options and alternatives presented which need to be based on thorough research involving all aspects of a child’s upbringing. The court will also normally scrutinise the motives of both parents in making (or opposing) the application, as well as the impact of the application being granted (or not granted) on both parents but the child’s welfare is the determining factor.

This balancing exercise is going to become even more delicate now as fundamentally no one can say with any degree of certainty “when this will be over”.

Remote contact is no substitute for spending time together; this is going to mean international travel. At the time of writing, there is an exceptional travel advisory in place against all but essential international travel. Whilst it is accepted that what is ‘essential’ will differ for each person, travellers will nevertheless be faced with other complications, most countries having closed their borders or implemented mandatory quarantines on arrival. Whichever way you look at it – it’s a de facto international travel ban.

Even when the international travel ban is lifted, travel is likely to be more complicated and more expensive. Airlines are already planning to “de- intensify” aircraft by reducing passenger numbers to reduce cross contamination. There is also speculation that air fares will go up by 50% as a result. There may be fewer routes or less frequency on existing routes. Health checks at borders may become the norm and many countries may expect the production of a Covid testing certificate and, in due course, a vaccination record before allowing entry. Clearly, whether it is safe or advisable to travel will need to be considered on a case by case basis but parents will need to show that the means of transport is as safe as possible and that they have taken all possible precautions in line with then prevailing health advice.

Against this backdrop, applicants’ proposals for contact direct and indirect will need to be creative, flexible and sufficiently robust and involve short-term and longer-term arrangements.

For those already in proceedings or those wishing to press ahead with their application now, some family courts are open for business, but where possible hearings are taking place remotely by way of video conference or telephone call whilst the government self- isolation restrictions remain in place.

However, the suitability of remote final hearings in highly contested hearings when considerable oral evidence is needed from experts or parents is being reviewed on an on-going basis. It is likely that where possible these will be adjourned rather than held remotely.

A consultation on various matters including remote hearings was carried out in April 2020 and concluded in the report published on 6 May 2020 by the Nuffield Family Justice Observatory.

Sir Andrew McFarlane, head of the English and Welsh Family Court, is now discussing this report with judges, the legal profession and others to consider whether there is a need for any further national guidance on remote family hearings in the Family Court at this time.

Pending the outcome of those discussions, at the time of writing, whether or not a remote hearing can proceed will be up to the individual judge to decide on a case by case basis taking account of the length of hearing, the issue before the court, whether there is to be oral evidence or “some other characteristic”.

It is fair to say that despite very best efforts it has not been possible for the court to operate with business as usual but nevertheless HMCTS is doing its utmost to assist by issuing weekly operational summaries to update professionals and the public on access to the Family Court and work prioritisation.

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