A Decree (Règlement grand-ducal) adopted on 18 March 2020 established restrictive measures as part of the action against the coronavirus pandemic (Mémorial A165). On 20 March 2020 a new Règlement grand-ducal was adopted amending the Règlement grand-ducal of 18 March. The new Règlement grand-ducal explicitly allows circulation in order to fulfil legal obligations relating to children custody, visitation rights and alternate residence (résidences alternées) as those rights have been established by virtue of agreement between the parties (parents) or by Court judgment. (scroll down to Download & Read).
Despite the above FAD – Fathers Against Discrimination a.s.b.l. receives reports of separated parents in Luxembourg according to which the other parent denies them the exercise of their rights using Covid-19 as pretext.
How is this possible? Apparently a copy of a letter from a Judge recently sent to members of the Luxembourg Bar is being used by some parents and their lawyers to violate Luxembourg court decisions.
Considering the challenges Luxembourg is currently facing as a country and the difficult times we are all going through, individually and as families, an attempt of any Judge like the one quoted below sent as a collective message to family lawyers in Luxembourg is to be considered as a highly inappropriate overstepping. Suggestions and personal interpretations included in the correspondence seem to justify illegal acts of withholding children custody in a way that runs counter Court judgments using the state of emergency as pretext. We know that such acts are already taking place.
The letter not only ignores the provisions of the Règlement grand-ducal of 20 March, according to which circulation is explicitly allowed for the purposes of fulfilling legal obligations relating to children custody as these obligations arise from agreements or Court judgments. Unless we have misread the intentions of the author the message also suggests to deny children their rights for family life in these difficult times and access to the other parent until the things “return to normality”. This in practical terms can mean for indefinite time as we simply do not know how long the current situation may last.
Furthermore, considering that in Luxembourg following separation of parents over 90% “primary” custodies with registered address of children are assigned to mothers, the personal suggestions included in the letter are clear sign of gender bias.
The approach that continuously denies equal treatment of fathers during custody hearings in Luxembourg Courts violates number of international legal instruments including the European Convention on Human Rights and United Nations Convention on the Rights of the Child (UNCRC). The convention adopted in 1989 with Luxembourg ratifying it in 1993. The Convention which 30th Anniversary was proudly celebrated by Luxembourg officials on 20 November 2019 – Link
Quoted paragraph (in French) from the letter sent by a high ranked Luxembourg official to Luxembourg family lawyers:
<< Il est impérieux pour les parents de faire de l’auto-inspection sure la santé psychique de leurs enfants et sur leurs disponibilité pour les garder personnellement : on n’est pas un mauvais parent si on admet que l’autre est la première personne de référence d’un enfant, respectivement plus a même de sécuriser l’enfant (…)
Si les parties ne trouvent pas une solution l’enfant doit selon moi être remis au parent auprès duquel se trouve la résidence habituelle, le second parent étant dédommage une fois que nous aurons tous retrouve la normalité. Par ailleurs, les contacts Facetime ou similaire sont impérieux. >>
English translation:
« It is imperative for the parents to make self-inspection on the psychological health of their children and on their availability to keep them personally: one is not a bad parent if one admits that the other is the first reference person of a child, or more in a position to keep the children in a safe environment (…)
If the parties do not find a solution, the child should, in my opinion, be handed over to the parent with whom the habitual residence is located, with the second parent being compensated once we have all returned to normality. Furthermore, Facetime or similar contact is imperative. »
