The ‘grave risk’ exception to child abduction and Covid-19

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Child Abduction is when a child under the age of 16 is removed or retained from the jurisdiction of England and Wales without the consent of all those with parental responsibility for the child. It is a criminal offence.

Parents of abducted children (often referred to as the ‘left-behind parent’) living in countries that have signed the 1980 Hague Convention, can make an application for the immediate return of the abducted child back to their country of habitual residence. It’s important to note that this application does not determine with whom a child lives with or spends time with following their return.

In this blog, I examine one of the limited exceptions to child abduction under the 1980 Hague Convention, the so-called ‘grave risk’ defence.

Article 13(1)(b) of the 1980 Hague Convention provides that a contracting state:

“is not bound to order the return of the child if the person, institution, or other body which opposes its return (the ‘respondent’) establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

These three risks of harm identified in Article 13 (1)(b) can be raised independently or together, however, the Courts have not always been seen to clearly distinguish between them in their decisions.

What is grave risk of harm?

Although the ‘grave risk’ must expose the child to harm, this may be direct or indirect, for example, physical or psychological harm to a parent could pose a grave risk to a child.

This is highly case-specific, however, examples of ‘grave risk’ have in the past been found in relation to domestic violence or regional conflict. Other examples have included where a parent may face imprisonment or persecution on their return to a specific country and where immigration or visa issues would impact practical arrangements.

When considering whether the exception applies, Judges are required to assess the future risk. Official guidance to family lawyers states that the examination of the grave risk exception should not be confined to an analysis of the circumstances that existed prior to or at the time of the wrongful removal or retention. It instead requires a look to the future, i.e., at the circumstances as they would be if the child were returned immediately.

A Court must consider any protective measures which may need to be put in place to ensure that the child will not face an intolerable situation when they get home. This can cover a broad range of existing services, assistance and support.

Can the risk of Covid-19 constitute a grave risk?

The ‘grave risk’ exception due to Covid-19 was considered in the recent case of Re PT (A Child) [2020] EWHC. The final hearing was heard on 27 March, after England (along with the majority of Europe) had entered full lockdown. The case concerned a mother, father and child (nearing age 12), all Spanish nationals. The child had lived in Spain her entire life. The mother and father were separated; the child lived with the mother and had regular contact with the father. In February 2020, the mother and child travelled to England – the father said without his knowledge or consent. On 10 March, the father made an application under the 1980 Hague Convention for the child’s return to Spain. The mother defended the application claiming, among other things, that the father had consented/acquiesced to the child’s removal and that the child would be subject to grave risk of harm if ordered to return to Spain because:

  1. the pandemic was more advanced in Spain than England; and
  2. the increased risk of infection posed by international travel (at the time, some flights were still operating between the UK and Spain).

The Judge found in favour of the father and ordered the return of the child to Spain. The Judge held there was no substance to the mother’s claims that a return to Spain would present a grave risk to the child because (based on UK government advice at the time) children do not fall into a category of people most at risk. The mother was heavily pregnant and was therefore more at risk. No evidence was put before the Court to enable a conclusion that one country was safer than another. The Judge accepted there was some risk associated with international travel but held that this did not amount to a ‘grave’ risk.

As the world (albeit at different stages) moves through the pandemic, vaccines become available and preventative measures more effective, it is doubtful (although by no means conclusive) that if this defence was raised in similar circumstances it is likely to be successful. It is certainly not in the public interest for a global pandemic to be seen as a means of excusing child abduction. As with any defence raised, the application must not compromise the delicate balance struck by the 1980 Hague Convention, with its core objective being to protect the interests of abducted children.

The decision in Re PT has been criticised by some as focussing too heavily on a physical risk to a child and failing to distinguish between any psychological risk caused by the pandemic. It has also been said that by simply concluding that there was no evidence to suggest that one country was safer than the other, the Judge did not fulfil their obligation to assess the risk in full and satisfy themselves that adequate safeguards and tangible measures (relevant to the threat from Covid-19, such as contact tracing, social distancing, mental health support for children etc.) were available in Spain.

Impact of Brexit on the ‘grave risk’ exception

Under EU law (of which the UK will be bound until 11pm on 31 December 2020), a Court cannot refuse to return a child on the basis of this defence, if it is established that adequate protective measures have been made to secure the protection of the child after his or her return. For example, in cases where domestic violence is alleged, a left-behind parent offering undertakings (enforceable legal promises) not to attend the airport on arrival of the respondent and child, and not to attend their property. However, from 1 January 2021, this will no longer be a feature of UK law. It will however still be possible for UK courts to make urgent protective measures relating to children physically present here under the 1996 Hague Convention. Which will be binding on the other countries who have also signed the 1996 Hague Convention.

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