After the lockdown- a view from France with Pierre-Guillaume Ducluzeau (English version)

We are often consulted in family law cases that have a cross-jurisdictional element. Being half-French, I was particularly keen to find out how our friends across the Channel had been dealing with their family law cases during lockdown (or as they call it, “le confinement”). I also wanted to know how the French courts’ response to lockdown might impact the advice that we give our clients with links to France.

I spoke to Pierre-Guillaume Ducluzeau, a family lawyer at CBBC avocats in Paris. It was fascinating to hear about how they are navigating the current restrictions in France, and how things look for them now that their lockdown has ended.

One major issue that we have encountered in Scotland (explored by Susan in her recent blog) is in relation to children moving between homes. In France citizens could only leave their home if they were able to produce, if requested by police, a self-completed form issued by the government explaining the reason for being outside. The legislation provided for seven valid reasons for leaving home, including grocery shopping, going to work where required, and importantly, accompanying children from one home to another. As of 11th May (being the end of the “confinement”), no such certificate is needed, and children can now freely move between houses. Pierre-Guillaume explained that this is subject to a proviso:

“Permitted movements are limited to a 100 km radius from the residence.  In a domestic French context, this limitation should not generally be problematic, but it may cause difficulties in an international context. Parents who live more than 100 km apart and want to exercise their contact rights can, however, fill out a form called “declaration of movement outside their department and more than 100 km from their residence”, one of the valid reasons authorising these movements  being “a child custody issue.” It seems that contact rights do fall under this category.”

France entered lockdown one week before the UK, and as a result their courts closed on the 16^th March. Pierre-Guillaume told me that, during their "confinement", only hearings involving domestic violence or international child abduction were able to proceed as normal. All other cases were postponed indefinitely or were processed only where there was an agreement between the parties that no hearing was required.

Now that the courts are gradually reopening, Pierre-Guillaume is concerned that there could be an influx of cases presented to the court, with lawyers trying to make urgent progress before the French judicial vacation period (which runs from mid-July to the end of August).

Certain reforms to divorce procedure in France are also being delayed. Pierre-Guillaume told me that:

“A major reform of the divorce procedure was also due to enter into force on September 1^st. This reform is expected to substantially modify the divorce procedure, with, for instance:

• the end of the conciliation hearing, during which the spouses could meet separately and without their lawyer with the Judge for a brief interview;
  
  
• the reduction from two to a one-year separation delay to allow for the divorce to take place in the absence of a fault-based divorce or divorce by agreement;
  
  
• or the introduction of an extrajudicial process to conduct the trial (“mise en état participative”) with both parties not exchanging submissions at fixed procedural hearings but presenting to the Judge a single document, highlighting their points of agreement and disagreements, thus allowing them to better control the duration and costs of the judicial process.

However, due to the current situation, it is widely expected that the reform's entry into force will be postponed until January 2022 at the latest, the exact date being not yet known.”

On a more encouraging note, Pierre-Guillaume has found that, although there have been the inevitable frustrations at being unable to progress court actions, there may be some positive outcomes arising from the experience. He explained that:

“Once the dust has settled and we have had to time to think about these delays, this may serve as an incentive for the French government to act and try to improve the judicial process. It will probably also encourage more and more lawyers to carefully consider whether an alternative method of resolution of the dispute may be preferable. This may also be the starting ground for a reflection with respect to organising remote hearings, either by telephone or through video conference, which is not possible today in family law cases.”

The insights above may be of particular interest to clients who, due to links with France and Scotland, have the option to raise divorce proceedings in either jurisdiction.  Although our respective lockdowns have caused difficulties for both systems, Pierre-Guillaume’s comments made me realise how fortunate we are in Scotland to have a court system that allows us, despite the lockdown, to progress at least some of our cases through remote hearings. There have been many cases though which have stalled, which has caused real distress and frustration. I suspect that the challenge, as Pierre-Guillaume identifies, will be how we deal with the inevitable back log that is going to exist in both jurisdictions.  A version of this blog in French can be found here.