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Child Abduction: is risk of contracting COVID-19 an Art 13 (b) defence to Child Abduction?

Date:15 APR 2020
Managing Partner

Introduction

In Re PT (A Child) [2020] EWHC 834 (Fam), David Rees QC, sitting as a Deputy Judge of the High Court, ordered the summary return of a child to the jurisdiction of Spain.  The judgement is dated 31st of March 2020.  The hearing took place on 27 March 2020 by remote facilities using Microsoft Teams platform.

This case is thought to be the first, no doubt of many, where Covid-19 is used as a justification in law.  Apart from aspects not relevant for this article, the mother relied on Art 13b 1980 Hague Convention.  She said there was a risk to the child of physical harm due to the COVID-19 pandemic in that the death toll in Spain is one of the highest in Europe.  The outcome of this case may be surprising to some when most of Europe is on ‘lockdown’, but it shows what a high threshold has to be met to secure a defense to child abduction/wrongful retention.

The case has an international importance.  Just as many family courts around the world are following decisions taken about when contact is required to continue to go ahead during the Covid-19 crisis, so family court judges will be looking at decisions worldwide in the child abduction context

Case Summary

The mother, father and child, aged 12, were all Spanish nationals.  The child had lived in Spain her entire life.  In 2012, the Spanish courts made an order granting the mother custody of the child, joint parental responsibility and also defined contact arrangements between the child and the father, which took place every alternate weekend. 

The mother travelled to England with the child and her half-sibling on around 13 February 2020 without the father’s knowledge or consent. 

The father issued an application for the child’s return to Spain under the Child Abduction and Custody Act 1985, incorporating the Convention on the Civil Aspect of International Child Abduction 1980, and under Article 11 of Council Regulation EC 2201/2003 (Brussels IIa).

Legal Background

The father’s case was that the child was habitually resident in Spain and was wrongfully removed from the jurisdiction, to England, by the mother.  Article 1 of the 1980 Hague Convention makes clear that the objective of the convention is to “secure the prompt return of children wrongfully removed to or retained in any Contracting State.”  Article 3 defines when a removal or retention of a child is wrongful, being where “it is in breach of rights of custody attributed to a person…under the law of the State in which the child was habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised, either jointly or alone.” 

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The child was interviewed by CAFCASS, and said she wished to return to Spain.

The mother defended the father’s application on the basis that the father had consented and/or acquiesced to the child’s removal (irrelevant for this article) and that the child would be subject to a grave risk of harm if she were to be ordered to return to Spain.

Art 13b states that “the requested State is not bound to order the return of the child if the person…which opposes its return establishes that – there is a grave risk that his or her return would expose the child to a physical or psychological harm or otherwise place the child in an intolerable situation.”   Placing reliance on this, the Mother argued that the child would be exposed to harm as the child would be returning to different circumstances in Spain, as she would not be living with her mother, but with her father; and that the child would be placed at risk of contracting COVID-19 by physically returning to Spain by means of international travel.

The Mother’s reliance on the COVID-19 factor was that there was a risk of physical harm to the child with the risk of contracting if the Court were the child to return.   This strand was two-fold: (1) the pandemic was more advanced in Spain than in the UK; and (2) there is an increased risk of infection posed by international travel at this time.

Outcome

The presiding judge found in favour of the father and that held, inter alia, that the mother’s case upon which she relies on Covid-19 virus was unsuccessful. The child was ordered to be summarily returned to Spain forthwith. 

The judge found that:

  1. there was no substance in the mother’s assertion that a return to Spain would present any risk of harm to the child or place her in an intolerable situation;
  2. the risk of separation of the child from her mother fell a long way short of being a “grave risk” required by Article 13b; and,
  3. the child’s new circumstances in Spain, namely that she would be living with her father in contrast to the original arrangement of contact on alternate weekends, did not pose any real risk of psychological harm or a “grave risk” as required by Article 13b.

The judge acknowledged he had not heard any evidence on the particular Covid-19 strand of the mother’s case.  But he found that the child did not fall into a category of people that are most at risk.  He acknowledged that the mother was herself at risk as she was pregnant.  However there was no evidence before the Court to enable a conclusion to be drawn as to whether either country is more or less safe than the other.  The judge accepted there was a higher risk of contamination through international travel at this time.  However, the risk of the child contracting COVID-19 was not sufficient to amount to “grave harm” as required by Article 13b.

The judge further ordered that the child should return to Spain immediately to avoid any further restrictions on freedom of movement due to the COVID-19 pandemic and that the child’s return shall not be delayed to await the birth of her half-sibling. He further said that, on the evidence provided by the CAFCASS, there was a clear need to restore some stability in the child’s life, which would be facilitated by her return to Spain.
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