International child abduction during the corona pandemic
The current corona crisis is impacting on many aspects of society, obviously including health and safety, the economy and education. It also has consequences for the legal profession, including implications for fundamental rights and health and safety. Some of the consequences from an international family law perspective were examined by the FJR editorial team in a recent joint editorial (FJR 2020/5), with one of the issues raised being international child abduction.
What happens if, say, the parent with whom a child is temporarily residing (in the Netherlands, for example, for a long weekend or short holiday) refuses to allow the child to return to the country (Italy, for example) where he or she was habitually resident with the other parent, claiming that the virus has had a far more serious impact in the country to which the child is supposed to return? Does refusing to return a child in these circumstances constitute ‘wrongful retention’ within the meaning of the 1980 Hague Abduction Convention? And can the parent refusing to let the child return successfully invoke Article 13(1)(b) of the Convention? In other words, to what extent can the corona virus justify refusing to return a child on the grounds that this would expose the child to serious physical or psychological harm?
The purpose of the Hague Abduction Convention, with 101 contracting parties, including the Netherlands is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Under the Convention, children are regarded as having been abducted if they are wrongfully removed or wrongfully retained. They are ‘retained’ if, after for example a holiday, one parent refuses to return the child to the other parent, with whom the child habitually resides and who initially consented to the child temporarily residing with the first-mentioned parent. Put briefly, the Convention aims to return the abducted child as quickly as possible to the state in which the child habitually resides. It is there that all aspects relating to custody (including, for example, parental responsibility, determining the child’s habitual place of residence, and visiting arrangements) have to be decided. Under the Convention, the child’s interests are paramount at all times. If the parties themselves cannot agree – if, for instance , mediation has failed to resolve matters – the parent wanting the child to be returned will have to take legal action. Only in exceptional circumstances are courts permitted to refuse to order the child to be returned.
Grounds for refusal. The Convention stipulates a limited number of grounds on. These include the grounds set out in Article 13(1)(b), where it is stated that a court may refuse to order the return if this would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Could the corona virus justify the action taken by the parent abducting the child? And how will a court assess the child’s interests in this respect?
The High Court of England and Wales, Family Division, ruled on precisely such an issue on 31 March 2020. The mother, father and 12-year-old child all had Spanish nationality and the child had always lived in Spain. A Spanish court had previously granted the mother and father joint parental responsibility, while the mother had been awarded custody, the child lived with the mother, and contact arrangements had been agreed with the father. Around 13 February 2020 the mother took the child to England without the father’s knowledge or, therefore, consent and then refused to allow the child to return to Spain. The father applied to an English court to order the child’s return to Spain in accordance with the Convention. The English court ruled that the child was habitually resident in Spain, where she had lived all her life. The court concluded that refusing to return the child was a wrongful retention within the meaning of the Convention. The mother invoked the ground for refusal provided for in Article 13(1)(b), referring inter alia to the risk that the child could become infected with the corona virus when travelling back to Spain. As this was at a time when the virus was spreading faster in Spain than in England, she claimed that the child had an increased risk of becoming infected in Spain, along with the resultant implications of this. The court disagreed and ruled that while international travel (by air, in this case) certainly entailed an increased risk of becoming infected,on the other hand the fact that few people were travelling between Spain and England served to reduce this risk. Furthermore, the child was not in a high-risk group. The court also mentioned that it was unable to assess which of the two countries would be safer for the child. The virus was spreading in both countries, and while Spain had had more deaths from corona than England at the time, the numbers of infections in the latter country was rising sharply. There was a serious risk to health in both countries, with the court finding no evidence to demonstrate that one of these countries would be safer for the child than the other. The court acknowledged that travel entailed a higher risk of becoming infected, but did not regard this as constituting a risk of physical or psychological harm within the meaning of Article 13(1)(b). The mother was ordered to return the child to Spain immediately so as to avoid the situation where the imposition of more corona virus-related travel restrictions would mean it was no longer possible for the child to return. For a brief summary of this judgment, go to: Re PT (A Child)  EWHC 834 (Fam) (31 March 2020).
This was certainly a difficult case, in which a decision had to be taken quickly and in unprecedented circumstances. Under the Hague Convention, the corona virus could be seen as constituting grounds for refusing to return a child, given the physical or psychological harm the child could suffer by returning (from England to Spain). An assessment was made to determine which country would offer greater protection. The initial impression is that this assessment was made in relatively general terms. The question, however, is whether such a general assessment is sufficient. There is no evidence that account was taken of the specific measures implemented by the countries in question to protect children, such as healthcare measures and whether children were allowed to attend school. Whether sufficient account was taken of the child’s interests, which the Convention states to be of paramount importance, is similarly unclear. As required by the Convention, however, the court did act expeditiously and sought recourse to online resources.
The District Court of The Hague (26 March 2020; ECLI:NL:RBDHA:2020:2861) also recently issued a judgment in an international child abduction case involving reference to the corona virus. The mother in this case, who was resident in the United States, applied for the immediate return of three minor children. She based her application on the Hague Abduction Convention, of which the Netherlands and the United States are both signatories. She asked the court to order that the father should return the children and, if he failed to do so, to determine a date on which the father should give the children, together with the required travel documents, to the mother so that she could take the children back to their habitual place of residence in the United States herself. The District Court took into consideration that the parents had joint parental custody and genuinely exercised it, that the children were habitually resident in the United States before being brought to the Netherlands, and that the father had not asked for or obtained permission from the mother or a court to travel to the Netherlands with the children and to reside there. Taking the children to the Netherlands in this way breached the mother’s custody rights, such that the District Court found that this should be regarded as wrongful removal within the meaning of the Convention. Under Article 12, therefore, the children should be returned to the United States without delay. The father was unsuccessful in his defence, in which he invoked Article 13, without raising the issue of corona. Having ordered the children to be returned to the United States, the District Court also stated that, in view of the current situation regarding the corona virus, if return to the United States was currently impossible, either because the father could not take the children there or the mother was unable to return to that country with the children, the children should be handed over to the mother, who was in the Netherlands for the court proceedings.
We have certainly not yet heard the final word on international child abductions and corona. There seem set to be many more cases and judgments requiring the corona virus to be taken into account when deciding whether to order a child to be returned. More information on the Child Abduction Convention can be found in the Child Abduction section on the website of the Hague Conference on private international law (https://hcch.net). This includes the Guide to Good Practice Child Abduction Convention: Part VI – Article 13(1)(b), which contains detailed information on applying this important article.
You can also contact the IJI for any questions on international child abductions Lisette Frohn is our specialist in international family law and also regularly publishes on this subject.