Family law thoughts in the time of Covid-19: Kind

We are all in this – separating couples and families in transition have particular challenges.

As individuals, family groups, friendship groups and work groups we have experienced seismic changes to our lives in a matter of a couple of short weeks. Many of our personal freedoms have been removed, including the ability to communicate face to face with many of the people whom we most need to. This is having a huge and challenging impact on couples who have separated, were in the process of separating or contemplating separation- and of course their children.

Separated couples who are settling down into their post-separation, co-parenting role can’t meet for a coffee to talk about how things are going and fine tune their communication and their child care arrangements. This risks misunderstandings and backward steps in newly forged parenting partnerships.
Separated couples who are still learning to say goodbye to each other as partners and hello to each other as parents could well be struggling with trust issues- it’s normal in the early stages of a separation. We know that emails and texts often cause problems for reasons of misunderstanding, and an inability to hear tone of voice and immediately ask for clarification.

Those of us working to support families in transition know that speaking works best – but couples who are still fairly new to their separation can hide behind written communication for fear of coming into greater conflict and/or getting distressed.

Couples who have decided to separate but not yet acted on this now find themselves stuck in a home together and in a charged emotional “waiting room” until the lockdown lifts- often with no spare bedroom to create brief periods of privacy and solitude.

And individuals who have yet to tell their partner that they think that their relationship has come to an end sit on a guilty secret trying to be “normal for who knows how long.

Add to this that all of these couples will have their own Covid-19 anxieties: elderly parents, relatives (or themselves) with an underlying health condition, being in work in the NHS or other essential services where social distancing isn’t possible, employment anxieties, financial worries and much else. The level of stress and anxiety that many people are experiencing cannot be underestimated.

The lockdown has hit children hard

We will no doubt over time learn how the rapid and extreme social changes that children and young people have experienced this spring will have affected them. But we know already that all children (except perhaps very young infants) have suffered profound losses: from removal from playgroups and nurseries and an inability for youngsters to use the local playground, through the loss of classmates and teachers and sports and other out of school social activities for older children. Teenagers and undergraduates may have had the toughest time. At a time when they are striking out as adult and autonomous they have had their academic year terminated, been left uncertain about their education, had no proper opportunity to say goodbye to each other as classmates and now can’t get together in friendship groups. These are terrible losses.

Covid-19 piles onto the bereavement of a relationship breakdown

When a long term committed relationship breaks down both people suffer a bereavement. The couple are almost always out of “sync” with one having emotionally left the relationship before the other. It really is a death of sorts, but in may ways this bereavement is murkier than an actual death – because the couple go on to live their lives autonomously and can form new relationships. During the worst parts of this bereavement your functioning is impaired and it can be truly difficult to hang onto the fact that your children will be bereaved too. Add this to the losses experienced by children described above and it’s easy to appreciate how many children and young people at the moment will be really struggling.
The impact of the lockdown on the family courts and family justice has been sudden and profound
On top of all of this, many separated and separating couples are going through court as they sort out their divorce, the child care arrangements, their financial arrangements or using other ways to sort things out such as arbitration, collaborative practice or family mediation.

People in court, or currently trying to get there, now find that the system has slowed down considerably. In recent years, to illustrate differences in access and speed, I have compared the court process to the NHS and arbitration to private health care: Austerity has led to the family courts becoming underfunded and understaffed resulting in waiting times for hearings getting longer and longer.

Consider that just 2 weeks ago, in response to the lockdown, the family justice system moved wholly to remote working with court hearings conducted by video-conferencing- without any real pre-planning.

At present the impact of this seems to be that, for the foreseeable future, only the most serious and urgent cases will get court time. This means that much family court work arising from divorce and separation is likely to be adjourned to later in the year.

All family dispute resolution processes have been affected

For people who are using talking processes such as collaborative practice or mediation there has been an initial hiatus as lawyers, family consultants, IFAs and pensions actuaries move to remote home working.

For those of us who already offered online services the transition was pretty swift. I have been able to arrange mediation meetings from my desk at home using video-conferencing, much as I did in my office, and so some of my work has continued uninterrupted.

However, some of my clients working in mediation or collaborative practice are used to working in the same room, face to face with me and other professionals; the change to online working has brought some of them up with a jolt. How do they mediate online if they have children at home in the lockdown? For some, the decision will be to pause everything until things are more normal. For others we can try to be flexible to meet when, say, young children are asleep. For couples with older or grown up children the challenge of securing privacy may be more manageable, particularly as the weather gets better and families can move into a garden if they have one.

Why “kind” matters now more than ever

So, in summary, families already in flux and crisis before the lockdown are now finding themselves overloaded with worries and stress. This is where my thoughts got to when I concluded that the only approach for us all to take at the moment is to focus on the word “kind”; I shared my thoughts with Sue which provoked her tweet.

Firstly, and most importantly we must be kind to ourselves. The flight attendant before take-off always reminds us to put on our own oxygen mask before attending to that of a child. This is a powerfully helpful image to hang onto. If we don’t take care of ourselves mentally and physically we won’t have the wherewithal to take care of those we are responsible for.

Then we need to be kind to everyone in our household – even if that includes a partner we have separated from or will be separating from. Kind in this context can mean simply cutting someone some slack, not doggedly pursuing an argument, even just letting things go because in that way you will be being kind to your children – who secretly (or not so secretly) just want their Mum and Dad to get on.

If you are stuck together for the moment you will be being kind to yourself if you let things drop and even try to accept that it won’t be easy for your partner either right now. (But be in no doubt that if you are at physical, sexual or coercive risk from a partner you are living with you should seek help. Call the police on 999 in an immediate emergency or, when it is safe to do so contact, a domestic abuse helpline or a specialist firm of family lawyers who offer legal aid. Many websites offer silent chat facilities or the ability to email direct for advice and help). These posters outline what to do if you call 999 but are unable to speak.

In the context of the court process or any other legal process you are using to separate, everyone involved at the moment (from judges, lawyers and court staff to clients, CAFCASS officers and social workers) will have their own personal Covid-19 worries. They are all adjusting to remote working and so virtually everyone is currently out of their comfort zone.

Therefore, it feels to me that, at the moment, we will all do better and decisions will be better made if we are a little more patient and understanding with each other rather than taking a “business as usual “approach.

Because, let’s face it, there is nothing usual about now, nothing at all.

Mary Shaw is a solicitor, family mediator and collaborative lawyer who routinely works online via videoconference. She offers options meetings (to explore what separation path could be best for you), MIAMs, Mediation and Collaborative Practice, all online. She helps with the technology and it’s easy to join a meeting if you have a smart phone, tablet or laptop.

The team of family lawyers in Newcastle at David Gray is fully operational and working from home desks to help and advise you on court work, both ongoing and emergency work, arbitration, negotiation, collaborative practice, family mediation, child custody mediation, MIAMs and options meetings. Please contact us by email or call Louise Law on 0191 243 8163