family law recommendation

Urgent submission to Minister for Employment Affairs & Social Protection and Family & Child Law Committee Guidelines during Covid-19 The Law Society expert committees continue to provide comprehensive and invaluable input to address challenges to the continuation of our practices. An immediate concern for practices relates to the financial package that was recently announced by the Government to support employers. It is clear that there is ambiguity and uncertainty around the applicability of the financial package to solicitors’ practices. With enormous input from the Employment & Equality Law Committee, for which we are grateful, a comprehensive submission has today been sent to the Minister for Employment Affairs and Social Protection. This submission, addressing fundamental aspects of Section 26 of the Emergency Measures in the Public Interest (Covid-19) Bill 2020, goes to the operability of the Temporary Wage Subsidy Provision. I am setting out the text of the submission below. RE: Emergency Measures in the Public Interest (Covid-19) Bill 2020Dear Minister,I write in my capacity as Chairperson of the Employment & Equality Law Committee of the Law Society of Ireland (“the Committee”). The Committee’s role includes the review of draft and existing legislation. Where appropriate, we prepare submissions to highlight any concerns arising, especially practical concerns for practitioners and citizens arising from ambiguous or unclear provisions in employment and equality legislation.The Committee members have had the opportunity to conduct an initial review of the above referenced Bill and the sections relevant to the Committee. The comments set out below reflect our major concern in respect of Section 26 of the Bill regarding the Temporary Wage Subsidy Provision (“TWSP”). Our concern is that as currently drafted, it is unlikely most employers would avail of the provision and thus the stated aim of the legislation would be stymied. In order to ensure the TWSP is effective, the Committee respectfully suggests the following:That eligibility for the TWSP should not be:linked to complex concepts such as “turnover”. (This concept is broad, difficult to define and could include both domestic and non-domestic turnover. It also introduces uncertainty around the appropriate comparison period); orconditional upon “an inability to pay emoluments” because as currently drafted this gateway to eligibility is vague and difficult to understand. It potentially means that the employer needs to be insolvent and if this is the case, it is hard to see how legally or practically an employer could “top up” the TWSP, as is the Government’s stated desire (this is also problematic where the Revenue intends to publish the names of those employers who avail of the TWSP which is a matter we would also respectfully request be reconsidered in the interests of confidentiality).That eligibility for the TWSP should be based instead on the following conditions:the employer’s reasonable belief that solely as a result of the economic disruption caused by the Covid-19 pandemic and not otherwise, that it will need to do one of the following in respect of its employees:To lay off some or all of its employees for at least the duration of the emergency (to 30 June);or to place some or all of its employees on short-time for at least the duration of the emergency (to 30 June); orterminate the employment of some or all employees by reason of redundancy; andthat the employer can declare that but for the Covid-19 emergency, the business had no proposals to implement layoffs, short-time or redundancies in the period to 30 June; andthat the employer has a reasonable belief that it will retain the employees in employment when the Covid-19 emergency measures as they relate to the cessation of commercial activity and free movement of people, cease to have effect (or some other appropriate time bound limitation to that effect.)We emphasise that the Committee offers these suggested amendments in a constructive and non-partisan fashion, as the Committee supports lawyers countrywide who advise, and represent, employees, employers, representative bodies and trade unions.We have a number of other observations regarding Sections 26 and 27 of the Bill, which we are happy to detail in further correspondence. Those observations however do not go to the fundamental operability of a section of the Bill in the same manner that we contend that the above suggested amendments do. In conclusion, we are writing to seek an urgent amendment of the Bill in the terms set out above. If it would be of assistance to you or your officials to discuss the above in any further detail, we welcome the opportunity to do so. I may be contacted through the Law Society of Ireland offices at the above address. Yours sincerely, Catherine O’FlynnChairperson, Employment and Equality Law Committee Colleagues will be updated on the response to that submission when received.In the meantime, in my ongoing commitment to provide practical assistance and support in the continuation of your practice, the Family & Child Law Committee has put together comprehensive guidelines which address the immediate issues that many of the family law practitioners are encountering at present.I wish to convey my sincere thanks to the Family & Child Law Committee, and indeed to all Law Society committees who are all inputting to support the profession in the current challenging climate. Family & Child Law Committee Guidelines during Covid-19Family law, by its very nature, is stressful for couples whose relationship has broken down. This stress is exacerbated exponentially in the current climate of Covid-19. A number of issues have arisen and the Family & Child Law Committee wishes to provide some guidelines to practitioners and parents who are encountering difficulties at the moment. Practitioners will appreciate the following guidelines are intended to constitute best practice guidelines rather than specific client advice:AccessIt is important that common sense prevails in relation to access, in the current climate.Parents must be vigilant to ensure they communicate positively with each other and make sure that they keep each other updated regarding the health of the child/children and their own health.If there is a Court Order in place, this should be complied with to the greatest degree possible in the circumstances.If there is no Court Order in place and an arrangement has been working between the parents, this should continue, if possible.The health and safety of children and family (especially the elderly, grandparents and those with an underlying medical condition) must be a priority. There should be no contact with grandparents and any person with an underlying medical condition. If one parent is living with his/her parents every effort should be made to ensure the grandparents are not put at risk, even if it means access has to be varied or suspended for the duration of the current health crisis.If a child has a compromised immune system, the health and safety of the child has to take precedence and all measures must be taken to protect the child. The best interests of the child must be the paramount consideration.Parents should both engage in social distancing and abide by the rules concerning non-interaction with third parties and be able to give assurances in this regard.If access cannot take place (for any of the reasons set out above) parents should set up a system of liberal contact – Telephone/Skype/Facetime/ WhatsApp – and allow the children to have extensive contact with the other parent.Innovative ways of keeping up regular contact using technology and other imaginative ways of communicating with children should be suggested by both parents and practitioners.MaintenanceIt is important that clients and practitioners take action in a timely manner if a client’s financial circumstances change.The paying party should notify the receiving party in the event that he/she is unable to pay maintenance as per an agreement or order, giving the reason for same. This should be done before the payment is due, if at all possible.If there are solicitors on record, a letter setting out the position should also be sent, perhaps with some vouching evidencing the change of financial circumstances if readily available.The paying party should consult their solicitor for advice, if possible, as to what might be an appropriate payment to make in the changed circumstances.This suggested payment should be communicated to the payment receiver as soon as possible, and agreement reached if possible.If agreement cannot be reached, then the paying party should pay what they are advised or believe is the appropriate amount in the circumstances.An Application for Breach of a Maintenance Order, (or a Summons for Attendance of a Maintenance Debtor), should not be made or issued if there is good reason why the debtor has varied the amount in the Order.Applications to Vary Maintenance should be lodged as soon as possible, for whatever return date is given, so as applications can be made to backdate Orders in due course.In circumstances where the receiving party is in difficulty, similar rules should apply in reverse, considering the paying party’s current circumstances and vice versa.Solicitors should advise clients and clients should communicate with each other or via their solicitors should they have difficulties with discharging mortgage payments and other joint bills and should again encourage each other to be jointly proactive in notifying third parties of an inability to pay them or sorting out an interim compromise during this crisis.Domestic violenceIf a domestic violence issue emerges during the current health crisis, consider the following options:Ring An Garda Síochána immediately; and/or Seek legal advice from your solicitor; and/orContact your local District Family Court as they remain open for domestic violence applications (see below).Child protectionIf a child protection issue emerges during the current health crisis, contact should be made with the appropriate state agencies: Tusla or An Garda Síochána.Pension Adjustment OrdersIn the event that a Pension Adjustment Order needs to be made that is time sensitive, an application should be made to have it listed urgently, but only when all paperwork is in order and filed.Please note that Dublin Family Circuit Court will rule ‘time sensitive’ Pension Adjustment Orders without the need for the parties to attend. Documents can be posted into Dublin Circuit Family Law Office and will be dealt with by the Judge in chambers on the next sitting. The following documents will be required: Ex-Parte docket A grounding Affidavit setting out the urgency and confirming the Order is being made on consent.Notice to trustees Affidavit of service Original letter from trustees confirming Order is workable. x 4 copies of the Draft Pension Order If you have any queries email ‘dublincircuitfamilylaw@courts.ie’ or telephone 01 – 8886807Guidelines for PractitionersAs solicitors, we represent our clients. However, we are also Officers of the Court and have a special responsibility in that regard.Care should be taken with written correspondence. All communication should be constructive, informative and effective. At all times, but especially now, correspondence should not contain emotive or inflammatory language.Pick up the phone and speak to your colleague.Do not take your colleagues short.Even greater care is required when dealing with a person who is not represented by a solicitor.Encourage clients to co-operate with the other parent.Practitioners should, as far as possible, keep in touch with clients on a regular basis so as to allay fears and tensions of clients at this stressful time.Practitioners should check the Courts Service website, www.courts.ie, on a regular basis to see updates regarding court sittings and adjournments. In the meantime, stay safe, stay positive and stay connected. I remain contactable by email to president@lawsociety.ie.