Where a child has been abducted or illegally detained in another country, recourse can often be made to the Hague Convention. The key aim of the Convention is to facilitate the return of abducted or retained children to their country of ‘habitual residence’ so that residence and contact issues can be dealt with there. In Australia the Convention is implemented through the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’).

There will be certain circumstances in which an application for a return order can be made under the Convention. Yet there are defences that can be raised when responding to a return application. One such defence is contained in Article 13(b) of the Convention which states that the requested State is not bound to return the child if the person opposing the child’s return can establish that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Return applications under the Convention have become more complicated in the last six months given the global COVID-19 pandemic. In recent cases across multiple jurisdictions parties opposing the return of the child have attempted to engage the Article 13(b) defence by claiming that there is grave risk that the return of the child would expose them to physical harm due to the COVID-19 pandemic. The issue for the courts has been to determine when and in what circumstances this argument will suffice to meet the Article 13(b) defence.

In the recent English case of Re PT (A Child) [2020] EWHC 834 the child’s father sought the return of his son from England to Spain under the Convention. The mother, relying on Article 13(b), argued that as COVID-19 was more advanced in Spain than in the UK, there is a grave risk that returning to Spain would expose the child to physical harm. Yet this argument was ultimately unsuccessful. The Judge found that the risk of the child contracting COVID-19 was not sufficient to amount to “grave harm” under Article 13(b). Notably, although it was accepted that international travel poses a higher risk of contamination, no evidence was presented which allowed the court to compare the differing rates of COVID-19 transmission of England and Spain.

However, a different conclusion was reached in similar factual circumstances in the case of I.C. (A Minor) [2020] IEHC 217. In this matter the child had been removed from Poland by the mother and was residing in Ireland. The father sought a return order under the Convention. It was found by Simons J that returning to Poland would place the child at a grave risk of both physical harm (contracting the disease) and psychological harm (uprooting his stable home and travel in circumstances where his health would be at risk). The Court here seemed to place significance on the current flight ban as well as the lack of evidence surrounding the quarantine controls being imposed on passengers travelling from Ireland to Poland.

Two recent Australian cases contain general discussion as to whether the risk of contracting COVID-19 can be used as a basis for an Article 13(b) defence, yet neither case presents any definitive determination of the issue.

In the matter of Comar & Comar[2020] FamCAFC 99 the Court considered whether the father, who was not party to the initial proceedings, had the right to appeal a decision to refuse to make a return order to Columbia. Throughout the course of proceedings it was acknowledged that the onset of the global pandemic had brought significant changes since the initial hearing in December 2019, and therefore the parties must have an opportunity to provide evidence before the Court as to the relevant effect of such changes.

The matter was ultimately remitted to afford the parties an opportunity to make submissions about travel restrictions in Columbia in the event a return order was made. Without this further evidence the Court would be ill equipped to decide whether there was in fact a grave risk of physical harm to the child due to COVID-19 under Article 13(b).

Some discussion of the issue was also had in the matter of Biondi & Koen [2020] FamCA 201 yet as there had been no relocation at the time of the Hearing there was no return order sought. It seems as if the Australian courts will be mostly guided by recent international decisions when dealing with Article 13(b) defences based on COVID-19.

It will certainly be interesting to see how the case law develops in this area and how Australian courts will deal with return applications under the Convention in light of COVID-19.