Families around the world have been affected by the impact of the COVID-19 pandemic, particularly where children travel extensively to spend time with either parent.
This article addresses the legal implications for parents who have been separated from their children as a result of the pandemic or the actions of the other parent, as well as the steps a parent must take to obtain permission to relocate to another country with their child.
For some parents the pandemic and travel ban has meant they have been separated from their child. For parents who have separated, this may have been as a result of the child being taken abroad by the other parent prior to the ban, without knowing they will be returned once the current measures are lifted and travel resumes.
Some parents may find that their lives have changed immeasurably as a result of the lockdown. Their reasons for staying in a particular country may no longer exist if their relationship breaks down, or they can no longer work in their chosen career as a result of the pandemic. They may wish to return to their home country taking their child with them. They may also wish to escape a pandemic hotspot.
If a child has been taken abroad without the consent of the parent that they live with then this may constitute a wrongful removal. It is important for the parent wishing to relocate to obtain the agreement of the other parent. It is potentially a criminal offence to remove a child permanently from their country of habitual residence. There are also legal remedies which could be swiftly employed to force the parent and child to return. It is equally important for the parent left behind to act as soon as possible to secure the return of the child and ensure that permanent residence is not established in another country.
What is child abduction?
Child abduction occurs where a person takes or keeps a child out of the country where they live without the permission of everyone who has parental responsibility, or without an order of the court. Child abduction can be classed as a criminal offence, depending upon the country you are in and can be punishable by way of imprisonment and/or a fine.
Impact of COVID-19 on child abduction
The recent case of Re PT (A Child)  EWHC 834 (Fam) has highlighted the fact that COVID-19 and the risk of contracting the virus may be used as an excuse or a defence by the parent who has failed to return a child. In this case the mother had removed the parties’ child from Spain to the UK without the father’s consent. The father issued an application for the child’s return to Spain on the basis that the child was habitually resident there and had been wrongfully removed. In turn, the mother pleaded her defence under Article 13(b) of the 1980 Hague Convention, by stating that the COVID-19 pandemic was more advanced in Spain than in the UK. As a result, the mother argued, the child was at a greater risk of contracting the virus in Spain and there was an increased risk of infection by travelling, thus constituting a grave risk of physical harm.
The Judge found in favour of the father and ordered that the child be returned to Spain. The reliance of the mother upon the risk of COVID-19 was unsuccessful.
Obtaining the court’s permission to relocate
Any parent making an application to the English court for permission to relocate with their child must put together a detailed statement in support to show they have really thought about and fully researched the proposed move. They must say where they are going to live, identifying a suitable property if possible. The court will require a complete assessment of all aspects of their proposed life in the new country dealing with all of the associated practical and financial issues. The motivation of the parent applying to relocate is important. The court will ultimately make a decision on the basis of the child’s best interests. The parent applying to relocate should try to demonstrate how the move will make things better for the child, focussing on what is good rather than what is negative. They will also need to have a clear plan about how the left behind parent will maintain contact with the child. This should be realistic, practical, generous and inventive. Moving away will obviously have a significant impact on the relationship between the parents so parents wishing to move need to address how this can be managed. Try to think about the problems that are going to be thrown at you so you can head them off.
Can I still apply to the court for the return of my child?
Despite the current pandemic, court action can still be taken in cases where permission was not sought before removing the child, and the courts recognise that complications concerning international travel may mean that such a case is likely to require urgent attention. As a result of COVID-19 and the guidance issued by the President of the Family Law Division (COVID-19: National Guidance for the Family Court) it has been deemed necessary to make temporary amendments to the guidance on International Child Abduction Proceedings.
The ban on travel has not led to a cessation of hearings dealing with child abduction and the court very much recognise this. The International Child Abduction and Contact Unit (ICACU) are now working remotely and are able to deal with reported cases. In respect of issuing an application, the guidance clearly states that until further notice, all applications may be issued as without notice applications and heard in the urgent applications court. This means that if your child has been abducted to another country and you wish to secure their safe return, you can apply to the court straight away without having to provide notice to the other parent. In order to expedite the process, given court closures, applications can be submitted by email.
Anyone parent either considering relocation, or concerned with the consequences of their child having been removed from the country during the pandemic, should immediately seek specialist legal advice.