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COVID-19, reporting of family law decisions and the family courts: a public disinfectant?

Date:28 MAY 2020

In a rather shocking judgment a Miami court has ordered that Theresa Greene, an emergency room doctor, will temporarily lose her joint custody of her four-year-old child due to her working with Coronavirus patients. The emergency order has granted her ex-husband full custody of their daughter, who previously shared joint custody with the mother with time divided equally between both parents.

This temporary suspension of custody has wide-reaching consequences. Clearly, on surface, the order appears draconian. Depriving an emergency room doctor of the care of her only child could clearly cause personal anguish to both the child and the mother; a doctor working so hard to save lives. No one knows how long this pandemic will last – but six months, for example, in a four-year-old’s life is evidently a significant and formative period of time.

The publishing of the judgment also serves as an interesting reminder of how different countries deal with publicity in children cases.

In England and Wales it would not have been possible for this judgment to be circulated in a way which would identify the people involved. Section 97 of the Children Act 1989 provides for the child’s anonymity; it would be quite difficult for someone to consider publishing the mother’s identity without that being likely to identify the child as being involved in the proceedings.

This raises an interesting question, namely is it right to effectively identify the child in these circumstances? Depending on the situation, perhaps. The public needs to have confidence in the work of the courts. This can in part be achieved by greater openness; by subjecting the decisions of judges to public scrutiny. It is obvious that the coverage of the above story carries far more weight by naming the mother and including a photograph. 

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So far we have not yet seen a similar order made in England and Wales, although media coverage did focus on the story of an NHS doctor and single mother voluntarily changing her children’s care arrangements after losing access to childcare. In order to continue fighting the pandemic, her daughter lives with her mother and her son with her ex-partner – due to the lockdown, she may not see them for months. The parties were able to be named, due to the coverage not referring to court proceedings.

The President of the Family Division, Sir Andrew McFarlane, issued guidance last month on compliance with Family Court Child Arrangement Orders with respect to Coronavirus cases. The overriding message was, if necessary, to follow the spirit of the order by making safe alternative arrangements for the child; in other words, use practical common sense to benefit the child concerned. There will of course be some situations where it is in the children’s best interests to live separately from their parents. Some doctors have made the decision to isolate themselves from their families to protect them from the virus they come into contact with on a daily basis.

The Miami judgment raises several pertinent questions, namely how are we dealing with similar issues in England and Wales? Further, do we need to reassess our country’s confidentiality laws? Is a blanket rule appropriate, and in the child’s best interests, in every case?

Of course, every case is fact specific. Decisions, therefore, must be made on a case by case basis by reference to a child’s welfare.

But to switch custody of children of doctors saving the lives of coronavirus patients seems to be contrary to public policy. Doctors doing their work should not have their own children taken away from their care as a result of their heroic career choice.