Child Abduction and Covid-19

Child Abduction and Covid-19

International child abduction occurs when one parent removes a child from one jurisdiction to another, without the permission of the other parent or a Court order allowing this removal.   There are many frameworks set in place to prevent this from occurring, such as the Hague Convention 1980 and 1996, similarly, the European Union also has a legal framework under Brussels II.  In England and Wales, the Family Law Act 1986 provides rules to be used between different jurisdictions within the United Kingdom. If none of these are pursued then the English and Welsh High Court can exercise its inherent jurisdiction to secure the return of the child to their home.

It has been several months since the government announced “Lockdown” in (23 March 2020).  Currently Covid-19 is still causing many cases and deaths to continue throughout the United Kingdom and internationally.  In terms of international child abduction cases it is not unreasonable for legal practitioners to predict that Covid-19 will be used as a justification within legislation for issuing ‘non-return orders’ by the Court. This is because a “return” may be considered a “grave risk” for the child under Article 13(b) of the Hauge Convention. (Nicklin, 2020).

Following this, the Hague Convention released a publication named a “Toolkit for the Effective Application of the 1980 Child Abduction Convention in times of Covid-19.”  This publication helps to guarantee the safe and quick return of children wrongfully removed from their habitual residence. This has been done by offering recommendations and guidance to the UK Central Authority for child abduction cases, the Legal Aid Agency, High Court, Cafcass and Reunite. The publication recommends that all these relevant services should continue to communicate regularly and carry on working together remotely. Moreover, applications for such cases should be issued remotely and be served before being sealed by the Court. The publication further advices that Mediation must still take place over telephone or video chat,  Cafcass can also interview children this way in order for them to ascertain their wishes and feelings remotely.  I have attached the document, detailing further advice to the  challenges Covid-19 brings to situations in context of the Child Abduction Convention 1980 (Weller, 2020).

To understand these potential challenges in better context, one such case was reported at the outset of the Pandemic within the United Kingdom. Re PT (A Child) [2020] EWHC 834 (Fam). Within this case, the child and both of her parents were Spanish Nationals. The child’s parents divorced in 2009, where the Spanish Court in May 2012 provided the mother with full custody and parental responsibly.  The child spent her whole life living in Spain until February 2020 where she was brought to England by her Mother.  

However, the child’s Father did not agree with the child moving to England and sought the summary return of the child from England to Spain under the provisions of the 1980 Hague Convention. The Mother defended this application on the basis that the Father consented to her moving to England and that the order returning her to Spain will expose the child to “Grave Harm” (Article 13 (b)). The Final Hearing took place on 27 March 2020 and was conducted over Microsoft Teams. The Court ruled that the child had been wrongfully removed from Spain (Article 3 of the convention), therefore must be returned.

This case is interesting as the Mother argued that Coronavirus meant the child could not return back to Spain. The judge therefore had to consider these two risks: (a) at the time of the hearing Spain’s Coronavirus cases were more advanced than that of the United Kingdom, (b) the increased risk of infection which is posed through international travel.  Whilst the judge agreed that International travel was a risk, he did not consider it to be a “Grave Risk” (Article 13 (b)).

Furthermore, the case of I and L (Children) [2020] EWHC 893 (Fam).  Within this example, a Mother brought two children from South Africa to the United Kingdom in December 2019 to spend more time with their Father who lives in England. The children and mother were habitually from South Africa. In January 2020, the children’s father applied to make the children wards of court until their welfare can be considered by the court. The father also applied for a passport order and an order preventing the mother from returning to South Africa with the children. This final hearing was conducted over Zoom. The Judge determined that the children should return to South Africa, however did not set a date, due to the Coronavirus Pandemic. At the time of the hearing there were also no flights from London to South Africa, and South Africa had forbidden entry to foreign nationals, and all visas had been temporarily revoked (Family Law Hub, 2020).

Both of these cases, demonstrate the problems courts are faced with when dealing with children who are unlawfully removed during the Covid-19 pandemic. Furthermore Legal Practitioners are eager to observe the evolving judicial approach to these problems and how they will change and adapt as the situation develops.

Please remember that SMQ are Oxford solicitors that are local and are here to help answer any questions that you have. We also have team members located in Milton Keynes and Bedfordshire. We are declared as “Key Workers” by the government meaning that we are open like usual and will be working our hardest to support all our clients and those seeking legal advice. We offer free 20 minute telephone appointments for all new clients.

 

By Olivia Mann

Paralegal

References:

Nicklin, E. (2020). Child Abduction and Coronavirus. [online]. Available at: https://goodmanray.com/2020/06/02/child-abduction-and-coronavirus/

Weller, M. (2020). Child Abduction in times of Corona. [online]. Available at: https://conflictoflaws.net/2020/child-abduction-in-times-of-corona/.

 

 

 

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