Grave risk of harm: child abduction case law in the time of Covid

In an interesting case from earlier this year, when the country was in the grips of a full national lockdown, the High Court wrestled with a difficult question of international law: would the health risks posed by the ongoing pandemic put a child at grave risk of physical harm were they to be returned to Spain from England following a wrongful removal of the child from Spain by her mother?

The factual background of the case is as follows: the child, PT, is 12 years old. She is a Spanish national, along with both of her parents who had separated in 2009. Both now have children with new partners. PT had spent all of her life living in Spain until February 2020, when she was brought to England by her mother. Her father said the move was without his knowledge or consent: he asked for PT to be returned, and the mother refused. The father therefore brought court proceedings.

The law governing such situations can be found in the Convention on Civil Aspects of International Child Abduction 1980 (the “Hague Convention 1980”), which exists to secure the prompt return of children wrongfully removed to or retained in states which contract to the convention. Such states include the UK and Spain. In this case, the judge found PT had been wrongfully removed from Spain to England. Once that had been determined, the judge moved to consider the limited exceptions to an order for immediate return. Article 13(b) of the Hague Convention 1980 provides that the child should not be returned if it is established “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”. This is known as the ‘grave risk of harm’ exemption.

The mother argued that a return to Spain would subject the child to ‘grave risk’ which, in effect, asked the judge to make a comparison between the provisions to suppress the pandemic in Spain as against England: an unenviable position for the judge. The defence was rejected and the judge ordered PT be returned to Spain immediately. The relevant paragraphs of his judgment are 46, 47 and 48, and a quote which summarises his finding on this particular issue is at the foot of this article. Put very simply, the judge was not in a position to conclude that one country was safer than the other.

Were the same defence to be used now in a child abduction case, it seems likely it would be similarly unsuccessful. As the world moves through the pandemic, however, vaccines become available and preventative measures more effective (it is hoped), discrepancies may develop between the prevalence and impact of the virus in different countries. As each case will turn on the facts, it cannot be said with any confidence that the ‘grave risk of harm’ defence based on Covid-19 will remain ineffective in the future. Another view of this case could also be considered: did the court wish to prevent a wrongfully removing mother benefiting from this global health crisis? The longer this pandemic lasts, the more chance there is of this line of case law developing. It will be interesting to see how the courts grapple with the issue going forward.