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Does COVID-19 Support a Defence of Grave Risk to Hague International Child Abduction?

Since the World Health Organisation declared the COVID-19 outbreak as a pandemic, several countries have implemented travels bans which have had a direct impact on transnational families. It is inevitable that COVID-19 would be raised in the context of child abduction cases given the difficulty in undertaking international travel in the current climate.

The Hague Convention on the Civil Aspects of International Child Abduction (‘The Hague Convention’) is the main international agreement that covers international parental child abduction. It seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. There are a limited number of defences to international child abduction. The defences are traditionally interpreted narrowly as this is a forum issue to determine whether a child should be returned to their country of habitual residence.

The United Kingdom recently handed down a judgement which considered whether COVID-19 qualifies as a defence to international child abduction under the Hague Convention. This decision provides an interesting insight into the international response to COVID-19 as the world faces the unprecedented challenges that COVID-19 has placed on international child abduction.

PT(A Child) [2020] EWHC 834 (Fam)

The case of PT (A Child) [2020] EWHC 834 (Fam), concerned a 12 year old girl. The father brought the application seeking the return of the child under the Child Abduction and Custody Act 1985 and under Article 11 of the Council Regulation EC 2201/2003. The parents of the child were both Spanish Nationals. The child was born in Spain in 2008 and lived in Spain until she was brought to England by her mother in February 2020. The parents separated in 2009.

Legal proceedings were commenced in Spain in 2012 to resolve parenting matters. The final Orders provided for the child to live with the mother and for the parents to have equal parental responsibility for the child. Orders were made for the father to spend time with the child each alternative weekend from Friday until Sunday evening in addition to half of the school holidays.

In February 2020, the mother who was pregnant at the time, travelled to England with the child without the knowledge or consent of the father. The mother refused the father’s requests for the child to return to Spain.

On 10 March 2020, the father issued an application for the child to be returned to Spain under the Hague Convention on the basis that the child was brought to England without his knowledge or consent and none of the grounds for refusing a return under Article 13 of the Convention applied. The mother relied on article 13(b) of the Convention that the existence of a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The hearing was conducted via Microsoft teams as a result of the current COVID-19 pandemic.

One of the issues in dispute related to the risk of physical harm that is presented by the current COVID-19 pandemic. The mother argued that the pandemic was more advanced in Spain than in the UK and therefore the child would be at a greater risk of contracting the virus in Spain than in the UK. Further, she argued that the risk of COVID-19 was exacerbated by the increased risk of infection posed by the international travel at the time. On this issue, the Judge noted that whilst the child would not be considered at risk of serious complications as a result of the COVID-19, the mother was at risk as a result of her pregnancy. However, the Judge was unable to draw a conclusion in relation to whether one country was safer than the other. The Judge concluded that whilst the travel associated with a return was likely to increase the risk that the child could contract COVID-19, the risk was not sufficient to amount to the “grave risk” of physical harm required by Article 13 (b) of the Convention.

Therefore, it was held that the child had been wrongfully removed from Spain and orders were made for the child to return to Spain.

By Olivia Melville, member of the International Law Practice Group.

By Nicholes Family Lawyers

 

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