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The government’s stark message to “stay at home” has undoubtedly caused much confusion and concern for parents in shared childcare arrangements with their ex-spouses/partners. The government has provided some guidance to parents who find themselves in this predicament and has confirmed that as of 24 March 2020 where parents do not live in the same household, children under 18 can be moved between their parents’ homes.The President of the Family Division and Head of Family Justice issued formal guidance on this on 24 March “Guidance on Compliance with Family Court Child Arrangement Orders” which can be found below. Of note, this guidance explains that whilst an exception to the mandatory ‘stay at home’ requirement has been granted for children under 18; it does not, however, mean that children must be moved between homes. “The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.” The key message appears to be that where restrictions due to coronavirus 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.”Collyer Bristow have also considered the challenges of Co-parenting and Coronavirus and have produced “10 top tips for co-parenting in these unprecedented and challenging times.”  The article can be accessed here: https://collyerbristow.com/shorter-reads/the-challenge-of-co-parenting-and-coronavirus/

So the outgoing President of the Family Division is throwing in the towel on access to justice, unless you have money. How depressing. There have been many straws in the wind – such as his enthusiasm for rolling out the online Family Court. The President has talked previously about people not being able to afford to travel to court so online access to justice can do the job instead. Apparently. Relying on one-size-fits-all online advice is quite dangerous, by the way, made worse by users being lulled into a false sense of security in thinking they’ve avoided all the pitfalls. Now the President is encouraging the use of private FDRs. FDR stands for Financial Dispute Resolution and is a useful judge-led stage in the court process when a judge acts as a sounding board to tell the couple in front of him how he’d deal with their financial dispute if he’d been their trial judge. If they don’t settle, he has no further involvement in the case.   It worked well for a number of years but the chaos in the courts (no judge/no court file/hanging around all day at court and being told at 4pm that there isn’t going to be a judge) has already prompted lawyers acting for wealthy clients to appoint a good well-prepared, usually ex-judge, to give clients this non-binding indication. They pay him or her, choose a private location (not in a public waiting room with three other families, or crouched around their files in the stairwell to get a bit of privacy) and it’s often successful, leading to an agreement that’s then approved by an actual sitting judge. Good for them. But it’s an indication of failure, not innovation.This is the sub text:1.  The courts are incapable of delivering justice to the public because of the catastrophic cuts to the Ministry of Justice budget. And that includes the decimation of legal aid so that those who can’t afford lawyers have no hope of getting proper advice and representation and their cases take up far more time when they do get to Court.2.  Those who have money can afford to buy access to justice. Although money has always given an edge to those in possession of it, there’s no longer any attempt to hide it.Imagine Matt Hancock, Secretary of State for Health, announcing enthusiastically that people can sign up to BUPA and take themselves off to private hospitals for privately paid operations. Because each operation paid for privately would “free up NHS resources to deal, sooner or more fully, with minor and more serious operations that demand the skills of a surgeon employed by the NHS”. Precisely. 

The Law Commission has this week announced that it will be conducting a full review of the law relating to surrogacy arrangements as part of its 13th Programme of Law Reform.Surrogacy describes a situation where a woman bears a child on behalf of another person or people. Historically this has tended to be for reasons of health or infertility, although in recent years it has also become an increasingly popular option for gay couples, as same-sex relationships have become increasingly recognised, accepted and finally legitimised in society and the law.The current laws on surrogacy are woefully out of date and were created in a completely different social and political landscape. As a result the court frequently struggles to make the necessary orders (which are almost inevitably in the best interests of the children concerned) in a way that is not inconsistent with the inflexible language of the existing statute. There are also some rules that seem inexplicable by modern standards, such as the prohibition on single people obtaining a parental order, and a need for a proper policy debate about whether commercial surrogacies should be allowed in this country.The Collyer Bristow family team have long supported the formation of ‘alternative’ family structures and are delighted that this issue will now receive the attention it deserves. In recent years we have seen many people feel compelled to look abroad for surrogacy opportunities and we hope that by simplifying and modernising the process it will become far easier for those who need to go down this route to have the family they so want.