Tuesday, December 1st, 2020
Strict travel restrictions, the limited availability of flights to certain destinations and quarantine rules have added extra complexity to the issue of child abduction during the Coronavirus Pandemic.
What is International Child Abduction?
International child abduction by a parent happens when a child is taken or kept out of the country in which the child normally lives, in breach of the other parent’s legal right of custody.
The primary, relevant laws within England and Wales that pertain to international child abduction are:
- The Child Abduction and Custody Act 1985 which gives the force of law to the 1980 Hague Convention: The convention is a multilateral treaty that provides a swift method for the return of a child (under the age of 16) internationally abducted by a parent from one-signatory country to another. Signatories to the 1980 Hague Convention each have a Central Authority. The Central Authority for England and Wales is called the International Child Abduction and Contact Unit (ICACU);
- EU Brussels II bis: This regulation supplements the Hague Convention, as it applies between member states of the EU; and
- The 1996 Hague Convention: the convention aims to improve the protection of children in international situations.
If the child has been taken to or kept in a country outside of the Hague Convention, then the High Court in England may have jurisdiction to assist with the safe return of your child.
It is important to act quickly and seek assistance from a solicitor experienced in this complex area of law. Here at Hanne & Co, we have helped many parents reunite with their children. We are Child Abduction Panel solicitors and listed with Reunite International, the child abduction charity.
International Child Abduction Cases During Coronavirus
Since the beginning of the pandemic, child abduction cases have continued to be heard. These give us an indication of how the courts are dealing with the novel issues that have arisen as a result of the pandemic. Two such cases include:
In March 2020, a father wanted his child returned to Spain using the 1980 Hague Convention, as the mother had taken their child to England. However, the mother said the father had agreed to the child’s move, and that returning the child would lead to a grave risk of harm or an intolerable situation due to the pandemic. The Judge considered the issue of the pandemic in Spain being more dangerous than in England at the time, and the risk of travelling by airplane during the pandemic. The Judge decided that he did not have sufficient evidence to show that Spain was a more dangerous location compared to England for coronavirus. He agreed that international travel was a risk, but not a grave risk, as required under Article 13(b) of the Hague Convention. The Judge ordered the child’s return to Spain.
In April 2020, a father wanted his child returned from England to Bermuda. However, the mother had Crohn’s disease, which made travel dangerous for her due to the pandemic. The Judge ordered the return of the child to Bermuda but stated that it was not reasonable for the mother to travel to Bermuda with the child until the UK government had communicated it was safe for people with vulnerable conditions to travel.
These cases indicate that the courts are deciding cases on their unique circumstances including the ongoing risks of the coronavirus pandemic. For some parents with a medical condition it may be impossible to travel and return a child under current governmental advice which may result in a delay in a child being returned to their habitual residence. In other cases, the courts are ordering children be returned despite the ongoing pandemic and potential travel risks and restrictions.
The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has provided a toolkit with guidance for those dealing with the 1980 Hague Convention cases. This reinforces that the child will remain at the centre of all decisions. They also advised that evidence should be provided by video conferencing where possible in the current coronavirus circumstances.
Similarly, the President of the Family Division of the High Court issued guidance on temporary amendments to their practice guidance on managing international child abduction proceedings and mediation during the pandemic. The guidance states that Cafcass, the High Court, the Legal Aid agency and the ICACU, are to primarily work remotely. This includes interviews with children and parents, and mediation between parents.
At Hanne & Co our team of specialist Family Law solicitors can assist you if you are faced with parental child abduction or if you would like to agree a child arrangements order to allow your child to leave the country with the agreement of the other parent. Please contact us on 020 7228 0017 to speak to a member of our team who will be happy to assist.
Marie-Claire Long is a Trainee Solicitor in Hanne & Co’s Family & Divorce Law Department