Introduction
It would be no exaggeration to say that the Covid-19 pandemic has influenced nearly every aspect of our lives, giving rise to unprecedented situations which have, in turn, pushed us towards finding novel solutions to existing issues. Children have been particularly affected by the pandemic, especially those in already vulnerable positions,[1] with it taking a toll on their mental health, leading to increased anxiety and depression that is reported to be experienced by every 1 in 10 children[2] with the pandemic exacerbating the matter further – certainly, an alarming number not to be overlooked.
The pandemic has also placed additional setbacks in international child abduction (ICA) cases, namely in the execution of return orders. Complications and delays have materialized due to quarantine restrictions and cancelled international flights, making it even more troublesome for the child in this situation as the judicial proceedings are excessively prolonged and the practical aspect of returning the child meets additional hurdles.
In order to gain a better general perspective on this current issue, we will delve into the very nature of international child abduction and how it has been dealt with in times of a pandemic to take heed of the best interests of the children involved.
What is international child abduction (ICA)?
International child abduction (ICA) does not, in fact, have a precise legal definition in the 1980 Hague Convention on the Civil Aspects of International Child Abduction[3] per se. However, as the Explanatory Report to the Convention clarifies, two constant elements can be observed in all such cases: 1) a child who has been wrongfully removed to or retained in a Contracting state and away from their habitual residence (cross-border element) 2) by (in the majority of cases) a parent who wants to obtain custody of the child in the country to which he/she has been taken or retained[4]. Article 3 of the 1980 Hague Convention, Article 2 of the Regulation Brussels IIa (2201/2003)[5] and Regulation Brussels IIa-recast (2019/1111)[6], the latter of which is yet to enter into force, are helpful in defining “wrongful removal or retention” to mean such removal or retention that is in breach of rights of custody and these rights were exercised at the time the child was abducted or would have been so exercised given that such an occurrence hadn’t taken place. It is important to state that the 1980 Convention applies to children of up to 16 years of age and, although the Brussels IIa Regulation does not expressly state an upper age limit, the recast Regulation would follow the Convention in this regard.
The focus on the best interests of the child has always been of paramount importance in such cases of child abduction. The recast Regulation further places an emphasis on this aspect through granting the child a right to express his or her views (Article 21), it includes the requirement for expeditious court proceedings (Article 24) which will also be beneficial for the psychological well-being of the child, and stresses on the significance that mediation as an alternative dispute resolution method (Article 25) may have towards achieving this goal.
Following from the above and the indisputable primary importance of ensuring that the best interests of the child are adhered to in ICA cases, the question then inevitably begs whether this can be practically achieved in the wake of Covid-19.
ICA cases and Covid-19: what has changed?
The 1980 Hague Convention continues to apply during the pandemic and the Secretary General of the Hague Conference on Private International Law has stated[7] that mutual cooperation among Central Authorities in ICA cases is now more crucial than ever. Indeed, in order to adhere to the best interests of the child[8], it is of utmost importance to make the judicial proceedings as prompt and child friendly as possible. For this purpose, the Permanent Bureau has created a Covid-19 Toolkit[9] which aims to guide users of the HCCH Conventions on their application through providing various useful links to instruments that can be utilized. What is more, the Permanent Bureau has also created a special Toolkit for the 1980 Child Abduction Convention in times of Covid-19[10] specifically, which provides useful guidelines and resources for the application of the 1980 Convention. Additional publications, such as the Guide to Good Practice on the Use of Video-Link under the HCCH 1970 Evidence Convention[11] have been made available during the Covid-19 pandemic which clarifies that video-link can be used for the gathering of evidence either directly or indirectly with the parties and/or representatives present, making it both a relevant and an important practice to be followed in ICA cases as well.
Does the pandemic constitute “a grave risk”?
There are several defenses to an international child abduction, including the claim that the parent opposing the return did not have custody rights at the time[12], they had consented or acquiesced to the removal or retention, the child objects to such a return[13], has settled in their new environment[14], fundamental principles related to the protection of human rights and fundamental freedoms do not allow it[15], or there is a grave risk that the return will cause physical or psychological harm, or result in an intolerable situation for the child[16]. It is precisely the last defense under Article 13(b) of the 1980 Convention which has been invoked most frequently in recent ICA case law and while it has been narrowly interpreted by courts[17], we can examine cases in various jurisdictions that have tackled it up to this date.
In the Australian Walpole case[18], the judge in the requested state provided that, had a return been ordered, under such conditions as the present, further submissions on the effect of both the children and the mother (parent appealing the return) would have been required, which was also a requirement in the case of Comar v Comar[19] thus opening a possibility for the risk of infection with the Covid-19 virus to fall under the scope of Art. 13 (b) .However this defense is still looked through a narrow lens as can be witnessed from a number of unreported cases ordering a return nevertheless.[20] For instance, in the English case of Re PT (A Child)[21], the court did not deem the pandemic situation in Spain to be more dangerous than the one in England thus ordering a return, and the Israel courts have also been rather unwilling to accept the defence in question in the context of the pandemic as a basis for a refusal to grant a return order.[22] Yet on the other hand, the court in the Irish C v G case[23] ruled that a return would in fact cause the child in this specific case physical and psychological harm.
Nevertheless, despite the lack of a wholly unified approach in this regard, the constantly evolving and uncertain nature of the pandemic has been quoted by courts in multiple cases[24] and therefore the answer to this present conundrum is for each ICA case to be examined on its own merit and based strictly on its individual specificities, a position also affirmed in the C v G case. In fact, it has been stated that, before allowing a return order to be enforced, the practice of the Hague judges is to examine all the details in each individual case both in terms of arrangements regarding the travel itself and the situation on the ground so that the best interests of the child are observed.[25] To this end, the Toolkit on the 1980 Convention provides further aid in that it proposes all the necessary safeguards, including “returning the child on flight priority lists”, purchasing “medical and travel insurance in the case of COVID-19 infection” and ensuring “quarantine facilities as the destination”.
Mediation through a new perspective
Mediation is a form of Alternative Dispute Resolution (ADR) which is oftentimes applied by parties in a dispute to reach more amicable solutions which are less expensive, burdensome and time-consuming than court proceedings., and most importantly, a better solution for any children involved.[26]
Mediation in the context of international child abduction cases, however, occurs not separate from but parallel and complementary to the litigation process – a practice that is also agreed on in Part V Mediation of the Guide to Good Practice under the 1980 Hague Convention.[27]
The Mediation Directive[28] defines mediation as: “a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.” (Article 3 (a)).
The Guide to International Family Mediation by the International Social Service (ISS) makes it clear that such practice puts the child at the center of the judicial proceedings[29] thus also complying with the Convention on the Right of the Child and the new provision in the recast Brussels IIa Regulation to allow for the child to express his or her views. The continuous availability of mediation during the Covid-19 pandemic therefore is crucial in order to continue to allow parties to ICA disputes to avail themselves of this alternative option. To this end, the Toolkit on the 1980 Convention promotes remote mediation and initiatives have also been undertaken on a national level- the UK, for instance, has introduced COVID-19: Temporary Amendments to the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, providing for safeguards that this be the case, with the child still having the possibility to be heard and give evidence through video calls[30]. Last but not least, relevant non-profit organisations, such as the International Mediation Centre for Family Conflict and Child Abduction (MiKK), have adapted their work to offer online mediation, providing much needed flexibility and convenience in times of global uncertainty.[31]
Conclusion
It is undisputable that the Covid-19 pandemic has changed the world as we know it and has prompted us to make the appropriate accommodations in multiple spheres of life. Unfortunately, this has not put a hold on international child abductions and Missing Children Europe reports that they still “make up the second largest category of missing children in the EU.”[32] Many abducting parents have viewed the pandemic as a means to circumvent a return order, aiming to use the “grave risk” defense in their favor, however it is clearly evident that the courts still take a rather narrow approach to its application in practice. One thing that has remained certain during such turbulent times is the need to ensure the best interests of the children are protected, given that they are most vulnerable in such judicial proceedings and thus entitled to special protection.[33] Therefore, while we will continue to observe how the current global situation will develop and evolve in the context of international child abduction in the future, a child-friendly, child-centered approach will most likely remain a constant paradigm in ICA cases.
[1] Unicef, ‘Covid – 19 and children’ (Unicef.org, March 2020) <https://data.unicef.org/covid-19-and-children/> accessed 20 April 2021.
[2] Eurochild, Save the Children, Unicef, ChildFund Alliance and World Vision, ‘Our Europe, Our Rights, Our Future’ (Unicef.org February 2021) <https://eurochild.org/can-we-believe-in-you/> accessed 20 April 2021.
[3] Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII.
[4] Elisa Pérez-Vera, Hague Conference on Private International Law, Explanatory Report 430 (1981) <https://assets.hcch.net/docs/a5fb103c-2ceb-4d17-87e3-a7528a0d368c.pdf> accessed 20 April 2021.
[5] Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
[6] Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction
ST/8214/2019/INIT.
[7] The Hague Conference on Private International Law, ‘Video Message from the Secretary General: Covid-19’ (HCCH, 4 May 2020) <https://www.hcch.net/en/about/hcch-video/sg-video-covid-19/> accessed 20 April 2021.
[8] UN Commission on Human Rights, Convention on the Rights of the Child, 7 March 1990, E/CN.4/RES/1990/74.
[9] The Hague Conference on Private International Law Permanent Bureau, ‘Covid-19 Toolkit’ (HCCH Permanent Bureau, 2020) <https://assets.hcch.net/docs/538fa32a-3fc8-4aba-8871-7a1175c0868d.pdf> accessed 27 April 2021.
[10] The Hague Conference on Private International Law Permanent Bureau, ‘Toolkit for the 1980 Child Abduction Convention in times of Covid-19’ (HCCH Permanent Bureau, 3 July 2020) <https://www.hcch.net/en/news-archive/details/?varevent=741> accessed 27 April 2021.
[11] The Hague Conference on Private International Law Permanent Bureau, ‘Guide to Good Practice on the Use of Video-Link under the Evidence Convention’ (HCCH Permanent Bureau, 16 April 2020) <https://www.hcch.net/en/news-archive/details/?varevent=728> accessed 27 April 2021.
[12] Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Article 13 (a).
[13] Ibid.
[14] Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Article 12.
[15] Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Article 20.
[16] Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Article 13 (b).
[17]The Hague Conference on Private International Law Permanent Bureau, ‘Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice’ (HCCH Permanent Bureau, 2003) <https://assets.hcch.net/docs/31fd0553-b7f2-4f34-92ba-f819f3649aff.pdf> accessed 27 April 2021.
[18] Walpole v. Secretary, Department of Communities and Justice [2020] FamCAFC 65, 25 March 2020, Full Court of the Family Court of Australia at Sydney (Australia), [INCADAT Reference No.: HC/E/AU 1456].
[19] Comar v. Comar [2020] FamCAFC 99, 24 April 2020, Full Court of the Family Court of Australia at Brisbane (Australia), [INCADAT Reference No.: HC/E/AU 1455].
[20] Morton Fraser, ‘International Parental Child Abduction – Review of 2020’ (Lexology.com, 30 March 2021) <https://www.lexology.com/library/detail.aspx?g=690ed263-a6e3-42c2-8d45-d589a6df214e> accessed 27 April 2021.
[21] Re PT (A Child) [2020] EWHC 834 (Fam).
[22] Family Case 52595-02-20 The Father vs. the Mother, 5 April 2020, Tel Aviv Family Court (Israel), [INCADAT Reference No.: HC/E/IL 1465].
[23] C v G (Child Abduction (Poland)) [2020] IEHC 217 <https://www.casemine.com/judgement/uk/5ec210094653d0665b96c3ca> accessed 27 April 2021.
[24] Rosa Saladino, ‘Will the Covid-19 pandemic undermine the 1980 Hague Abduction Convention?’ (Australian Family Lawyer, December 2020), 29/3 <https://hclp.com.au/wp-content/uploads/2021/01/Will-the-covid-19-pandemic-undermine-the-1980-Hague-abduction-Convention-Vol-29-No-3-Australian-Family-Lawyer.pdf> accessed 27 April 2021.
[25] Morton Fraser, ‘International Parental Child Abduction – Review of 2020’ (Lexology.com, 30 March 2021) <https://www.lexology.com/library/detail.aspx?g=690ed263-a6e3-42c2-8d45-d589a6df214e> accessed 27 April 2021.
[26] The Academy of European Law (ERA), ‘Training module on parental responsibility and child abduction, Thematic Unit 3:Family Mediation’<https://www.eracomm.eu/EU_Civil_Justice_Training_Modules/kiosk/courses/Family_Law_Module_2_EN/Thematic%20Unit%203/kiosk/dokuments/Print_Thematic_unit_3.pdf> accessed 27 April 2021.
[27] The Hague Conference on Private International Law Permanent Bureau, ‘Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation’ (HCCH Permanent Bureau, 2012) <https://assets.hcch.net/docs/d09b5e94-64b4-4afe-8ee1-ab97c98daa33.pdf> accessed 27 April 2021.
[28] Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
[29]International Social Service, ‘Resolving Family Conflicts: A Guide to International Family Mediation’ (ISS, 2014) https://www.iss-ssi.org/images/Conf-MFI/guides/Guide_EN.pdf.
[30] Courts and Tribunals Judiciary, ‘COVID-19: Temporary Amendments to the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings’ (judiciary.uk, 2020) <https://www.judiciary.uk/wp-content/uploads/2020/08/COVID19-Draft-Temporary-Amendments-to-Child-Abduction-Practice-Guidance-Final-26.03.2020.pdf> accessed 27 April 2021.
[31]The International Mediation Centre for Family Conflict and Child Abduction, ‘Free MiKK Online Course: Introduction to Online Mediation – 16th April 2020’ (MiKK-ev.de) https://www.mikk-ev.de/en/events/event/10371/ accessed 27 April 2021.
[32] Missing Children Europe, ‘International Child Abduction’ < https://missingchildreneurope.eu/international-child-abduction/>.
[33] Alexander Bagattini, ‘Children’s well-being and vulnerability’, Ethics and Social Welfare (Taylor & Francis Online 2019), 13, pp. 211-215 < https://www.tandfonline.com/doi/full/10.1080/17496535.2019.1647973> accessed 27 April 2021.