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By Ann Thomas & James Netto

The problem facing international parents

Few families have escaped the new and heightening challenges posed by pandemic restrictions and lockdowns across the world. Some of the most affected have been families whose children are living abroad; be they international families with connections abroad, or parents whose children reside in different states following a relocation on parental separation.  Many have found that, with borders closing and quarantine restrictions tightening, it has been increasingly hard for families to spend time together internationally under their usual contact arrangements.  From March 2020 onwards, Easter plans and summer travel have had to be almost universally postponed, and future trips will be facing more and more difficulties on a practical and legal basis.  Fortunately, many countries began to ease some restrictions over the second half of this year, albeit under the risk of quarantine on return and the threat this has on employment plans, schooling arrangements, and day-to-day life.

Now that the winter months are closing in, and threat of a second wave is on the horizon, parents are understandably anxious about the prospects of seeing their children at Christmas and beyond. What will be the position for these parents with their children throughout 2021?  What can be done to review arrangements where there has already been agreement that the child may live with one parent in another country?  Similarly, what effect will this have on relocation applications now?

Identifying the crisis

The ongoing and seemingly never-ending hiatus in travel has thrown the complexities of international parenting into stark focus. The Australian Treasurer, Josh Frydenberg, announced last week that international travel (including for both tourists and international students) is assumed to remain largely closed off until late 2021, and then gradually return over time.  The Prime Minister, Scott Morrison, indicated that a travel ‘bubble’ could open between Australia and a handful of other nearby states, but that otherwise, Australia would not be rushing to open its borders and would be proceeding carefully.  New Zealand has proceeded even more cautiously, and the barriers for international travel have been coming down with varying degrees of severity across the globe.

It is almost inevitable that several other countries will follow suit, for some or a good part of 2021. Even now, families with Malaysian, Singaporean or Thai connections may find that entry for some foreign nationals is prohibited; parents seeking to return to Caribbean states, including Bermuda, the British Virgin Islands and the Caymans, may face closed airports, obligatory quarantines, or refusals of entry. As Europeans know only too well, limitations can be regional or national, and few states across the world will have escaped the pandemic portcullis coming down.

Naturally, the hope across western jurisdictions has been that the northern autumn would see only a minor second wave, and that a degree of normality would return early 2021.  As more and more curfews and lockdowns are announced on a near-daily basis, this would seem to be in some doubt.

The above represents an appalling prospect for international parents, and anxieties will run high at the thought of having little contact with their children, living in another country, for a good part of the next 12 months; irrespective of the valid questions posed of international travel in any event.

So where is this likely to have the greatest impact, and what should international practitioners do in response?

Identifying the problem and creating solutions: child abduction

It is often said that relocation is the consensual flipside of child abduction.  But this must be a starting point.  Even within the first few months of the pandemic, a steady trickle of parents were able to remove their children to another country, perhaps even their home country, giving the excuse of the pandemic and the extent of the prevalence of the virus in the country in which they were then living.  In many countries, this was held to be a thoroughly unacceptable defence.  Senior judges went out of their way to make it clear this would not be permitted.  By way of example, Mostyn J, sitting in the English High Court, determined in our case of N (a child) [2020] EWFC 35 that:

By 20 March 2020, the coronavirus pandemic had taken grip here. On that day, which was three days before the Prime Minister announced the national lockdown, the mother unilaterally removed N to her mother's home on the island of Paros. She did so in the belief that she and N would be much safer from the virus there. That may well have been a valid view, it being common knowledge that by virtue of pre-emptive action Greece has a much lower rate of infection and mortality than this country. However, that does not justify, in the slightest, what was a wrongful removal of N from the place of his habitual residence and, more importantly, from his father.

In ordering the return of abducted children, courts have been obliged to engage in judicial gymnastics, in determining how a child can return, the method of returning, who will return the child and perhaps quarantine with them, and what journey is indeed possible. Before the pandemic was ever on anyone’s radar, such an exercise would have formed no more than an afterthought; now, judgments are increasingly being taken up by spelling out the minutiae of the practicalities of a return  

Accordingly, faced with the possibility of border closures and substantial quarantine restrictions over perhaps another 12 months, courts around the world must be strong in urgently and expeditiously returning any child abducted. Whilst the pandemic has placed obstacles in the way of overturning children, they can still be overcome, and will require careful forethought.  The fast timetable anticipated in the EU and applied in several other countries must be adhered to, lest a travel restriction prevents ongoing relationships between parent and child.  In this regard it must be recorded that many countries which have imposed travel restrictions from March 2020 onwards have made allowances for the entry of children and parents returning after an abduction, and applicant parents may well be advised to seek recitals or requests within a final court order, inviting the relevant authorities to facilitate the children’s prompt return home.

The appalling situation faced by a parent whose child has been abducted becomes even worse when the risk of non-return is coupled by the risk of no contact through border closures and similar international restrictions.

Identifying the problem and creating solutions: reviewing arrangements

Invariably, when one parent agrees to the other parent relocating with the child to another state, it is most often accompanied by generous contact arrangements.  This must take the cost of international travel, the ability to take time off work, and the educational timetable of the child amongst other issues into account.  It is rarely easy.  The general principle however is often that the ‘left behind’ parent has far more contact during traditional holiday periods to make up for lack of contact during term time, weekends and similar as occurs in many national cases.  This would also include the opportunity for the child to return to the previous home country where the other parent is living, perhaps during the longer summer holidays. 

Most or all of this will either be difficult or nigh-on impossible now.  It has been enormously challenging since March 2020, with little sign of the situation abating for very many months, perhaps extending into and beyond northern summer.  Even if borders are open, there may be quarantine restrictions, self-isolation, on return which will create problems for ongoing employment.  There may be quarantine on arrival which will make spending time with the child practically and pragmatically impossible or ineffective.  Unfortunately, this is the prospect now for these international families. Finally, there will also always be cases whereby coronavirus will be inevitably used as a vehicle to create further difficulties by antagonistic parents.

Arrangements should be reviewed urgently in all such cases.  Family courts and practitioners alike around the world must be sympathetic to the plight of these parents.  Even more fundamentally, we must take due regard of the best interests of the child to have a good ongoing relationship with the parent with whom the child is not primarily living. The courts must keep up, innovate and continue to protect and promote safe family relationships, even in times of chaos.  To paraphrase an English High Court Judge who declared a child cannot hug a Skype, the same can be said for a child using Zoom.  To have perhaps as much as a year pass without face-to-face, physical contact will be significantly disadvantageous for the well-being, upbringing and development of a child.  Arrangements must therefore be reviewed.  It will depend on the countries involved, the working pattern, the school holiday times, finances and similar, but it is not impossible.  There may be the opportunity of meeting in a third country, to ease the risk of air travel and quarantine on return.  It might be possible for the child to travel with others, or as an unaccompanied minor, if this will avoid quarantine for either parent.  It might be a much longer time at Christmas where it is anticipated most governments will be doing their best to ease restrictions for this holiday period.  Parents, and their specialist international children lawyers, will need to exercise creativity.  But above all, the child must have the opportunity to have good contact notwithstanding these difficulties worldwide.

Identifying the problem and creating solutions: new relocation applications

It is inevitable that these matters must be considered by a court on a relocation application.  If giving permission to relocate carries any risk that the so-called left behind parent will not see the child for long periods over the coming 12 months, perhaps more, because of actual or possible border closures or quarantine restrictions, then there may be an argument that the relocation should be put over until the global position is better known.  Of course, there will be geographically close countries where it will not as severe a problem.  As countries bring in so-called ‘safe corridors’, cases may need to change.  But these elements apart, courts should not quickly be allowing relocation until the situation globally is far better understood.  This is the only fair position for the child and for the parent who might otherwise have real difficulties meeting and seeing the child over the forthcoming year or more, until the dreadful issues facing the world have eased, or at least, until they are better known.

Ann Thomas and James Netto
The International Family Law Group LLP
© 15 October 2020