VISITATION AND ACCOMMODATION RIGHTS: WHAT ABOUT PARENT’S RIGHTS AND THE RIGHTS OF THE CHILD IN TIMES OF CONFINEMENT?
Following the declaration of the state of crisis on March 15th, 2020, there was a great deal of doubt as to the procedures for exercising access and accommodation rights for separated parents. Indeed, on March 20th, 2020, the advisory opinion of the Family Affairs Judge of the District Court of and in Luxembourg instructed parents to strictly limit the movement of children. In homes where the child’s parents live in separate residences, this has led to conflictual situations in which some parents have refused to accept or hand over the child to the other parent, thus going to the against any legal decision preceding the state of crisis.
May 7th, 2020
On April 2nd, 2020, the President of the Chamber of Deputies, Mr. Fernand ETGEN, acknowledged receipt of an urgent parliamentary question to the Minister of Justice Madam Sam TANSON concerning the procedures for the exercise of visitation and accommodation rights in times of confinement and more specifically, regarding the advisory opinion issued by the Family Affairs Judge dated March 20th, 2020.
The advisory opinion of March 20th, 2020
It should be recalled that in Luxembourg, the principle is that parental authority is joint, that is to say that it is exercised jointly. The parents of the child have the same rights and obligations towards the person and the property of their child, whether they live together or whether they are separated or divorced. In the event of separation or divorce, the child’s usual residence can then be fixed with one of the two parents, the other parent then obtaining visitation and accommodation rights.
Even though the exercise of parental authority has in no way been affected by the declaration of the state of crisis, great doubts persisted in relation to the visitation and accommodation rights exercised by parents with separate residences.
These doubts seemed to have been clarified on March 20th, 2020. Indeed, the instructions received by the Family Affairs Judge indicated that parents living apart and usually sharing custody or residence are requested to strictly limit the movements of children.
Thus, the Family Judge held that it was unwise to maintain the visitation and accommodation rights agreed upon or judicially decided. The advisory opinion also stated that if the parents did not find a suitable solution, the child had to stay with the parent with whom the usual residence is located. The other parent will then be “compensated” once a return to normality is possible.
The parliamentary question of April 2nd, 2020
It is following to a letter received from the association “Fathers Against Discrimination” (hereinafter “FAD association”), dated April 1st, 2020, that the deputies Mr. Roy REDING and Mr. Fernand KARTHEISER transmitted to the President of the Chamber of Deputies a parliamentary question regarding the advisory opinion of the Family Affairs Judge of March 20th, 2020.
The FAD association is committed to equal parental rights after separation, stressing that a child should never be deprived of their natural human right to family life and equal access to both parents.
Thus, since the advisory opinion was likely to have a disproportionate impact on the rights of parents with whom the usual residence is not located, or even on the rights of the children themselves, the letter from the FAD association was given close attention and gave rise to the parliamentary question formulated on April 2nd, 2020.
Firstly, the parliamentary question asked the Minister of Justice to confirm the existence of an advisory opinion.
Secondly, it asked the Minister of Justice to assess the procedural value of this opinion, in particular in relation to compliance with legal decisions preceding the state of crisis, in relation to the rights of the child and its parents, as well as its compatibility with Article 1 of the grand-ducal regulation of March 20th, 2020 which authorized travel for the exercise of visitation and accommodation rights.
Finally, the parliamentary question asked more generally what the current Luxembourg government intends to do in order to ensure respect for visitation and accommodation rights, even in times of confinement.
Statement by Minister Sam TANSON
While it would be possible to consider that the opinion of March 20th, 2020 would go against government directives as suggested by the FAD association, the response of the Minister of Justice was limited to legal references in case of an emerging dispute between separated parents.
The Minister thus confirmed the existence of this opinion, but did not comment on the approach of the Family Affairs Judge referencing the independence of the judiciary.
In her response to the honorable deputies REDING and KARTHEISER, the Minister of Justice confirmed that the grand-ducal regulation of March 18th, 2020, as modified by the grand-ducal regulation of March 20th, 2020, maintains that any travel necessary for the exercise of the visitation and accommodation rights as fixed by agreement between the parties or by a judicial decision is permitted.
In addition, the Minister indicated that a specific interim procedure has been established in order to resolve emergency situations related to the COVID-19 pandemic. This procedure is codified in Article 4 of the grand-ducal regulation of 17 April 2020 relating to the holding of public hearings during the state of crisis before the courts in cases subject to the written procedure and relating to the temporary adaptation of the procedure for exceptional proceedings before the Family Affairs Judge. Thus, if disagreements between parents regarding the exercise of the visitation and accommodation rights meet the criteria of Article 4 of the grand-ducal regulation of April 17th, 2020, these disputes can be resolved quickly through the exceptional interim proceedings.
More precisely, in accordance with the aforementioned Article 4, during the state of crisis and derogating from Article 1007-11 paragraph 1 of the New Code of Civil Procedure, the request to obtain interim measures referred to in Article 1007-11 may be introduced in the absence of a referral to the Family Affairs Judge by an application on its merits, and by electronic means. The measures ordered by the Family Judge in this regard will automatically end two months after the end of the state of crisis, without prejudice to article 1007-11, paragraph 6, of the New Code of Civil Procedure.
* * *
The parliamentary questions relating to the impact of the advisory opinion on the rights of parents and children will therefore remain unanswered, but the necessary government measures are in place to ensure full respect of visitation and accommodation rights.