29th Apr 2020
Undeniably, a new “order of things” is now in place around the globe as a result of the unforeseen pandemic of the coronavirus (COVID-19). In addition to its major impact on the health of thousands of citizens and the subsequent economic crisis, the coronavirus will significantly affect family relationships and potentially disrupt the family equilibrium, especially when it comes to separated families.
Cyprus is among the many affected countries that have taken strict emergency measures in an effort to fight the new, “invisible enemy” and has imposed a lockdown on its citizens pursuant to the Quarantine (Determination of Measures to Prevent Spread of the COVID-19 Coronavirus 2020) Decree (No.9) dated 23 March 2020. However, according to Governmental decree issued by the Minister of Health –The Quarantine (Determination of Measures to Prevent Spread of the COVID-19 Coronavirus 2020) Decree (No. 10) –“movements of “divorced or separated parents that are necessary for the uninterrupted communication and contact of parents and children” are exempted from the general prohibition.
In view of the current lockdown and despite the exemption outlined above, many divorced or separated parents around the world have been faced with violations of court orders. A parent may often refuse to comply with a shared custody or communication order and prevent the other parent from seeing or speaking to their child. What happens in cases of children who, due to health problems, qualify as belonging to vulnerable groups of our society? What if they are asked to remain at home by paediatricians and the Ministry of Health, while at the same time a shared custody / communication court order is in force? Even without such health problems, separated parents are very likely to argue over contact with their children during lockdown. What happens when one of the parents is a “key worker” and thus is at risk of catching the virus and spreading it to others? With or without good reason, parents may sometimes exploit lockdown measures and government guidelines to prevent visits altogether.
It goes without saying that all judicial decisions and orders should be respected and strictly adhered to – family law decrees are no exception to this rule. A parent disobeying a court order and preventing an ex-partner or spouse from seeing their child could face court action for contempt of court. In Mavronikola Maria v. Andi Xanthou, (2011) 1 C.L.R. 293, it was stressed that “it would not be over the top to confirm, once again, the necessity to comply with court orders. Otherwise, the rule of law, on which the rights and obligations of individuals are founded, and the claim of society is established, for the enforcement of the law and order in a democratic society, would collapse”. According to Article 42 of the Courts of Justice Law, Law 14/60, persons who do not comply with court orders are faced with imprisonment, as contempt of court proceedings are viewed as quasi-criminal.
Where the concerns are genuine and would, subject to a careful consideration of all circumstances, require an adjustment of the arrangements in place, the only way forward would be for the parent to submit an application with the Family Court and request a suspension or amendment of the relevant parental care / custody/ communication order, and not to arbitrarily impose those changes without both parents’ consent. In view of the fact that Cypriot courts have now postponed both the hearing of cases and the filing of pleadings, applications and affidavits until 30 April 2020, any such applications can be heard only if they are urgent. As such, an application for the suspension or amendment has to be filed on an ex parte basis, i.e. without the court hearing the other side, and on the basis of the occurrence of “urgent or other exceptional circumstances” (Article 6, The Civil Procedure Law, CAP 6).
Family Courts retain the power to review earlier “parental care” decisions. According to Article 20 of the Relationship between Parents and Children Law, Law 216/90, “if the circumstances have changed since the court decision for parental care was issued, the Court may, at the request of one or both parents or the Director, adapt its decision to the new circumstances by revoking or amending it.” “Change of circumstances” was interpreted by the Family Courts as requiring the existence of radical changes in the circumstances (C. Economou v. G. Economou (1981) 1 C.L.R. page 48) that existed at the time of the issuance of the relevant parental care order. The burden of proving that the circumstances have radically changed between the issuance of the said order and the date of filing of the application, rests with the applicant. The court, as has been repeatedly stated in Supreme court decisions and expressly stipulated in the relevant legislation, will reach its decision based on what would be in the best interests of the child.
During these difficult times, parents should be collaborating in an effort to ultimately safeguard their children’s happiness and emotional stability. That said, in cases where no other option is available, judicial settlement of the dispute is available.
For further information, please do not hesitate to contact our firm’s Family Law department.