International children law – a perfect storm?

Posted by familylaw on 11th March 2021

Last updated 29th March 2023

An analysis on the impact of Brexit and Covid-19 on child abduction cases, both now and in the future.

First published in March 2021 Family Law Journal www.lawjournals.co.uk

Ever-changing restrictions and guidelines resulting from the Covid-19 pandemic have had a significant impact on international families where separated parents live in different jurisdictions, adding thorny new dimensions to what were already complex legal challenges.

The courts can no longer just consider the legal issues, but have to also scrutinise every detail and the practical implications of decisions, including travel arrangements and curbs to these. It might seem plausible that restrictions on travel and contact would actually reduce the possibility of child abduction, but in practice this is not the case.

Neither Covid-19 nor Brexit have deterred the potential of child abduction, but instead provided a new opportunity and ‘justification’ for parents to take action rather than act in accordance with existing orders and the law. The judiciary has been very clear in this jurisdiction, as they have in other countries, that this is unacceptable and not a defence to child abduction. This was addressed head on by Mostyn J in N (a child) [2020], when he found that a wrongful removal could not be justified by reference to a ‘safer’ country in the context of the pandemic (see below).

While the pandemic and Brexit are altering the landscape of child abduction cases, the courts still need to find a way to navigate through and provide the appropriate safeguards for concerned parents. The burden is on the judiciary to manage international cases efficiently and with clarity so that parents are not left with the prospect of being without their children or unable to visit them in another country for the foreseeable future.

Impact of Brexit on child abduction cases

With effect from 1 January 2021, 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 (Brussels IIA) no longer applies in the UK, subject to transitional provisions as to existing proceedings. Brussels IIA has been key in assisting couples to resolve disputes regarding divorce and child custody issues involving more than one EU country.

Brussels IIA deals with:

• which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country;
• the recognition and enforcement of judgments issued in one EU country in another; and
• procedure as to the abduction of a child from one EU country and to another.

Brussels IIA does not deal with substantive family law, which is the responsibility of individual EU countries.

One of the main objectives of Brussels IIA is to uphold children’s right to maintain contact with both parents, even if they are separated or live in different EU countries.

Some have suggested that the loss of Brussels IIA will not be too harshly felt given that the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) and the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) will apply. However, on a closer look and examination of Brussels IIA, it becomes clear that there are subtle but significant losses of protection for parents against international child abduction.

Article 9

Article 9, Brussels IIA provides significant rights to a parent with parental responsibility that  mean that even if a child moves to an alternative member state, and an agreement is not reached regarding child contact (referred to as access in Brussels IIA) and arrangements, then the non-resident parent with parental responsibility can apply to the court in the place of former habitual residence within the first three months of the child’s move to resolve the contested matters. This three-month reprieve period is for the purpose of modifying a judgment on access rights issued in that member state prior to the child’s move, where the parent with access rights pursuant to the judgment continues to have their habitual residence in the member state of the child’s former habitual residence.

In effect, in such circumstances, Brussels IIA removed jurisdiction from the second member state. In contrast, the 1996 Hague Convention effectively limits the individual with parental responsibility by not allowing them to bring such an action in the court where they are habitually resident where the child’s habitual residence is elsewhere.

Article 11(3)

Brussels IIA goes further than the Art 9 provisions by virtue of Art 11(3), which states:

A court to which an application for return of a child is made … shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

and:

… the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

Cases of international child abduction are generally not protracted and are usually dealt with in an efficient, often expedited, manner. The very nature of these proceedings means that time is very much of the essence. This is embodied to some extent within the 1980 Hague Convention, which states at Art 2 that:

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

Generally, this provision will be sufficient to ensure the courts adopt an expeditious manner when considering cases of parental abduction, but the three-month continuing jurisdiction of the state of former habitual residence in Brussels IIA can offer significant reassurance for parents when dealing with urgent issues even where the courts already work under a presumption that these matters should be dealt with as quickly as possible.

But without a specific time frame, it remains to be seen whether the provisions that remain will be sufficient and this is a question which will only be answered after practitioners begin to see the long term effects of Brexit and the loss of the key protections of Brussels IIA.

Article 11

The 1980 Hague Convention does not provide for a second attempt at return proceedings once the proceedings have been concluded. In contrast, Brussels IIA, Art 11(6) provides that on making a non-return order, the court must immediately, either directly or through its central authority, transmit a copy of the order and relevant documents (including a transcript of the hearings before the court), to the court with jurisdiction or central authority in the member state where the child was habitually resident immediately before the wrongful removal or retention, within one month of the date of the non-return order.

Articles 50 and 55

Generally, legal aid is available for the proposed applicant under the 1980 Hague Convention. Schedule 1, Part 1, Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012), para 17 makes provision on a non-means tested for  legal aid to be available in relation to an application made under the 1980 Hague Convention in respect of a child who is, or is believed to be, in England and Wales. The initial application is made directly to the central authority, the International Child Abduction and Custody Unit (ICACU), which will then refer the case to a panel solicitor. This referral is sufficient to meet the means criteria for legal aid. Legal aid for a respondent to such an application is means tested.

Legal aid is also available for parents wishing to apply for the recognition and enforcement of orders under Brussels IIA, Arts 21, 28, 41, 42 or 48. However, this is not replicated if a parent were to make a similar application under the 1996 Hague Convention and LASPOA 2012 is silent as to whether legal aid would be available for such an application, which raises the question as to whether this is or should be available, given the similarities between 1996 Hague Convention and Brussels IIA.

It is disappointing therefore that Brussels IIA has not been retained so that the protection offered would be maintained at its previous high level. The 1996 Hague Convention is an excellent tool but has some clear deficiencies and may further complicate an already complex area of law, effectively putting new barriers in place for resident parents seeking the return of their children after an alleged wrongful removal.

Impact of Covid-19 on child abduction cases

On top of the uncertainty due to Brexit, the changing legislation and protection available to parents, the impact of the pandemic provides its own variant to the whys and wherefores of international parental abduction.

Parents are concerned about the inevitable limits that the pandemic is placing on contact with their children. With the second wave striking hard at the heart of most countries and numbers on the increase at the time of writing, an abundance of varying restrictions have been put in place by different countries. Ultimately this raises many questions on the practicalities of implementing a potential return order or an order for contact with a non-resident parent.

Travel restrictions – which seem to change daily – can render the implementation of an order unattainable, therefore rendering the execution of orders nigh on impossible.

Practitioners now have the added complexity of not only needing to consider the application itself, but also any specific practicalities such as flights, travel details, testing, vaccines, quarantines and curfews when seeking a return order within parental abduction cases. Perhaps unsurprisingly, some parents have been quick to suggest Covid-19 as a justification and reason for parental abduction.

Some parents may take the view that other countries have managed the Covid-19 crisis differently and that the perceived risk may be less there. However, the courts have taken a firm line on this justification in cases of parental abduction.

In the earlier stages of the pandemic in May 2020, in N (a child) Mostyn J made it very clear that Covid-19 is not an acceptable defence to international parental abduction. In this case, the mother had unilaterally removed the child to Greece on the basis that both she and the child would be safer in Greece due to the lower levels of infection. The court acknowledged this reasoning, but Mostyn J said that this rationalisation was not acceptable, and that it ‘…does not justify, in the slightest, what was a wrongful removal of [the child] from the place of his habitual residence and, more importantly, from his father’ (para 16).

It was vital that the courts in this jurisdiction took a hard line in this respect, as if they had failed to do this at such an early stage in the pandemic, it would undoubtedly have created the perfect storm for child abduction.

Despite this, it cannot be ignored that it is potentially easier for parents to abuse the circumstances of the pandemic and use it as a loophole to justify not returning a child. With the additional burden of testing, quarantine and vaccines, there are numerous loopholes which could potentially be abused by parents.

Conclusion

With the concerning rise in Covid-19 cases and restrictions on travel under constant scrutiny, judges and family lawyers will have the added pressure of needing to respond quickly – dare I say pivot – for many, many months to come. However, with vaccinations beginning, there is a light at the end of the tunnel that restrictions will one day be less impactful.

But unlike Covid-19, the consequences of Brexit and the withdrawal of Brussels IIA will be far-reaching and will require far more thought and consideration for the long-term. The questions most child abduction lawyers will be asking is whether the 1996 Hague Convention is sufficient, or whether further provision is needed to address the loss of Brussels IIA.

In practical terms, the effect of Brexit could potentially be far-reaching in comparison to that of the pandemic as unlike the pandemic, there is no end in sight. Brexit is permanent, meaning that much needs to be done to ensure that the safeguards and protection for parents, who have had their children removed, are maintained post-Brexit.

How this may be done remains to be seen, but it would be remiss to consider the 1996 Hague Convention as providing sufficient protection, and unless and until the law reflects equivalent protections to that of Brussels IIA, parents will inevitably be on the back foot.

This area of law has always been complex and subject to change. What the pandemic and Brexit have done is to add even more levels of complexity – a situation likely to continue for a long time to come.

Cases

N (a child) [2020] EWFC 35

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