Can the novel coronavirus form a defence to international child abduction?

An interesting decision is now available in respect of a child removed by her mother from Spain, her place of habitual residence and the subsequent application by her father for her return brought under legislation incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (the Convention) in England and Wales. A copy of the full judgment is here.

The mother removed the child, an 11-year-old girl, to England in mid-February 2020 without the knowledge or consent of the father. The mother is heavily pregnant with a child to her current partner who lives in England and with whom the mother left Spain to live. The father asked the mother to return the child to Spain, but she refused to do so, resulting in the father’s application for return under the Convention.

The mother ran, among others, an argument that (at the time of the hearing on 27 March 2020) the novel coronavirus pandemic was more advanced in Spain than it was in the UK and that the child’s return to Spain, as well as the risk of infection of international travel, placed her at higher risk of physical harm in contracting the virus. Though the court acknowledged the increased risk of the child contracting the virus through international travel but concluded that she was at risk of this whether she remained in England or returned to Spain. The court held that the risk of contracting the virus when considered in the context of the harm the child would suffer if she did contract it was not sufficient to amount to “grave risk” of physical harm as required by Article 13(b) of the Convention as a defence to the child’s return.

The court also noted that the risk of international travel was not so high as to have caused either the UK or Spanish governments to end flights in and out of their respective countries altogether.

While it is possible that the nature of the risks of contracting the novel coronavirus and the court’s assessment of those risks will be informed by the rapidly changing landscape of this pandemic this judgment provides an interesting insight into the high threshold to reach in order to satisfy the “grave risk” defence under the Convention.

If you require advice on the Convention and its impact on your family circumstances, please contact Partner Joanne Brown.

For more information on proceedings brought under legislation incorporating the Convention in Hong Kong, please see our previous article on the topic here.

Joanne Brown and Elizabeth Seymour-Jones

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.