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Impact of the Covid-19 pandemic on arrangements for children of international families

Managing arrangements for children during the Covid-19 pandemic, particularly with numerous lockdowns, travel restrictions and school closures, has been challenging to say the least. For families with an international dimension, this has been further complicated, and the recent case of AC v NC [2021] EWFC 946 (Fam) highlights the particular difficulties when one parent lives abroad. This is an interesting case as it considers whether there was a 'wrongful retention' of a child in the UK in the context of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention").

In summary, this application concerned a four year old boy (K), born in January 2017. His parents met in the USA in 2014 and were married in 2015, but separated in April 2019 and in October 2019 signed a "Marital Settlement Agreement" dealing with financial matters between them and also detailing arrangements for the care of K. It was agreed that the mother and K would relocate to England where he would go to school and that K would make a minimum of three visits per year to the USA to see his father in the school holidays.

K and his mother returned to the UK in January 2020, shortly before 'the eruption of the global pandemic'. It is recorded in Mr Justice Mostyn's judgment that: "Unfortunately, in April 2020 the Covid-19 pandemic and subsequent lockdown and travel restrictions meant that the mother was not able to fly with K to the USA over Easter 2020, in accordance with the agreement. The mother had booked flights and was due to depart for the USA on 31 March 2020, but those flights were cancelled and so the trip did not go ahead."

The subsequent agreed summer and Christmas trips did not go ahead either due the quarantine obligations and the impact this would have on K's schooling; importantly the mother did propose K could make a shorter trip in summer to avoid this issue and also suggested that the father could come to the UK to visit K (but this was not possible due to his work commitments). 

In October 2020, the father issued proceedings in the USA and, further, in January 2021, an application seeking K's immediate return to the USA under the Hague Convention. It is set out in the judgment that under the Hague Convention "the tie-breaker is the habitual residence of the child" and indeed the Hague Convention can only be invoked where the child's habitual residence has not changed prior to the alleged act of wrongful retention. In respect of a change of habitual residence, previous case law is referred to in the judgment and it is crucially set out that: "The process of a change of habitual residence can happen quickly or slowly. The key, indeed only, question is whether by the relevant date that change has happened. This is a pure matter of fact." 

The father argued that K's habitual residence had not changed as the mother had a 'dishonest intention' to deprive the father of his 'spending time rights' and would not comply with the agreement. 

Mr Justice Mostyn found that K was habitually resident in the UK by Easter 2020 and had developed the: "requisite degree of integration in a social and family environment in this country". Mr Justice Mostyn also set out that he was "not aware of any authority which states that an agreed relocation, with a concomitant change of habitual residence, can be voided ab initio on the ground of fraud" but in any event found that the mother did not "harbour that dishonest intention" and fully intended to comply with the order. There was no wrongful retention.

This case sadly highlights the impact of the Covid-19 pandemic on arrangements for children and K's ability to see his father who lives abroad. It is anticipated that there will have been thousands of other families in this situation. Whilst this is obviously distressing for the family involved, the mother was fully compliant with Covid-19 regulations and there was no criticism of her actions - indeed she facilitated video contact between K and his father every other day and also his wider family.

The evidence clearly shows that the mother had reasonable grounds not to travel to the USA at that time on account of the impact of the Covid-19 pandemic. Therefore, there was no wrongful retention.

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