Article 13(b) of the 1980 Hague Convention and Covid-19
Dawson Cornwell, London
It is not uncommon for the Article 13(1)(b) exception, namely the ‘grave risk’ exception, to be used as a defence to object to the return of a child in 1980 Hague proceedings. While highly fact-specific, most common assertions relate to grave risk resulting from domestic violence or regional conflict. The outbreak of Covid-19, with different countries at different stages of the outbreak, poses a new challenge and raises key questions:
Can the risk of Covid-19 constitute a grave risk to the children under the Article 13(1)(b) exception?
Would a return to a country where Covid-19 is rife and less controlled, place a child in an intolerable situation?
What consideration, if any, is given to the psychological harm of travelling in a pandemic, when masks are quickly becoming the norm or the effect of social distancing on children?
What about the risks of physical harm from contracting the virus, either by travelling to the country of habitual residence or to a returning to live in a country where rates of infections are higher?
Article (13)(1)(b) of the 1980 Hague Convention, states that a member state:
‘…is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that 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.’
The language used is broad, but is it broad enough to encompass the risks associated with Covid-19?
The wording of the article is indicative that any examination of the risk requires a look into the future. Indeed, the HCCH ‘1980 Child Abduction Convention: Guide to Good Practice Part VI Article (13(1)(b)’ (Guide to Good Practice), states at paragraph 36 that: ‘the examination of the grave risk exception… should not be confined to an analysis of the circumstances that existed prior to or at the time of the wrongful removal or retention. It instead requires a look to the future, ie, at the circumstances as they would be if they child were returned forthwith’. This poses as further challenge in the context of a pandemic. When everything is every changing, how far into the future is one to look?
The ‘grave risk’ exception, due to Covid-19 was considered in the Re PT  EWHC 834 (Fam). The case concerned a child, PT, who was approaching her 12th birthday. PT and her parents were all Spanish nationals and she had lived in Spain her whole life until 13 February 2020, when she was brought to England by her mother. Prior to the removal, and pursuant to a Spanish order of 25 May 2012, PT was having contact with her father on alternate weekends, from after school on Friday until Sunday evening, as well as half of all the school holidays. The father’s case was that PT was removed from Spain without his knowledge or consent. On 10 March 2020, in the midst of the Covid-19 outbreak in Europe, the father issued his application for PT’s return to Spain. The final hearing was listed on 27 March, to be heard at the Royal Courts of Justice. However, on 23 March, England entered into a lockdown and as a result, the hearing was conducted completely remotely via the Microsoft Teams platform.
The mother was acting in person and provided five possible arguments against a summary return, one of which constituted ‘the health risks posed by the current coronavirus pandemic’. At the time of the hearing, Spain was only second to Italy in Europe in the number of fatalities caused by the virus. Nevertheless, there were still some flights operating between the UK and Spain and Mr David Rees QC, sitting at a Deputy Judge of the High Court, noted in his judgment there was a ‘need for particular urgency’ in the matter as ‘the restrictions on movement that are posed by the coronavirus pandemic means that there is no guarantee that the flights as are currently operating between the UK and Spain will continue to do so for much longer’ and ‘to delay ordering a return could mean that it would become practically impossible for a return to be implemented for some considerable period of time’ (paragraph 50). In considering the risk of physical harm presented by the current Covid-19 pandemic, the Judge noted (at paragraph 46) that the risk presented itself in two ways:
1. ‘The pandemic is more advanced in Spain than in the UK. As at the date of the preparation of this judgment (29 March) the official death toll stood at 1,228 in the UK and 6,528 in Spain. It could therefore be argued that PT would be at greater risk of contracting the virus in Spain than in the UK.’
2. ‘The increased risk of infection that is posed by international travel at this time.’
He further remarked (at paragraph 47) that ‘national and international situation is developing at such speed that any evidence that could be gathered would be likely to be immediately out of date’. Indeed, in less than two months since the judgment was handed down, the official death toll in the UK is higher than that of Spain. The Judge took judicial notice of the UK government advice at the time, drawing the following conclusions (paragraph 47):
1. ‘Those who are considered most at risk of serious complications from coronavirus are the elderly and those with underlying health conditions. Neither PT, nor her parents fall within this category.’
2. ‘PT’s mother, because of her pregnancy is, however in a group that has been advised to socially isolate themselves.’ (The mother was around eight months pregnant with PT’s half-sibling at the time).
3. ‘Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other. It is clear that the pandemic is a serious public health emergency in both nations and that the number of cases in the UK is expected to continue to rise in the coming weeks. Both countries have imposed significant restrictions on their citizens in an effort to contain the pandemic. I am simply not in a position to make any findings as to the relative likelihood of contracting the virus in each country. On the material before me, all I can conclude is there is a genuine risk that PT could contract the risk whether she remains in England or returns to Spain.’
4. ‘International travel at this time potentially carries with it a higher prospect of infection than remaining in self-isolation. However, I understand that limited international flights between the UK and Spain continue to be permitted by those governments for essential travel. From that I infer that the risk of infection posed by air travel, whilst no doubt significantly greater than normal, is not so high that either government has felt necessary to end flights altogether.’
As a result, the Judge concluded that while travel is likely to increase the risk of contracting coronavirus, the risk did not amount to ‘grave risk’ of physical harm required by Article 13(b). The Judge had found that PT was wrongfully removed from Spain within the terms of Article 3 of the Convention and none of the Article 13 defences have been made out and ordered the summary return of PT to Spain. It was ordered that PT is returned to her father’s care and directed that the father ‘should implement her return to Spain as soon as reasonably practicable given the global public health pandemic’(paragraph 52).
The above case illustrated the court’s approach when such a defence is raised. The decision was reached by relying on UK government guidance, which of course, is subject to review and change. The decision reached in Re PTdoes not mean that no case where the risk of harm by virtue of contracting Covid-19 is raised a defence, will be unsuccessful. The Guide to Good Practice recommends that a step-by-step analysis is undertaken when considering the grave risk exception. It recommends that the Court should, as a first step, consider whether the assertions are of such a nature, and of sufficient detail and substance, that they could constitute a grave risk; noting that ‘broad or general assertions are very unlikely to be sufficient’ (paragraph 40). In Re PT,the Judge noted that he did not hear any evidence on the matter and was reliant on UK government guidance.
As the situation develops, there are a number of studies being conducted and conclusions being drawn. Future assertions may become less general and broad. In such circumstances, a more detailed analysis would be required than was undertaken in Re PT,with the Guide to Good Practice recommending that the Court would need to determine ‘whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return/information gathered, and by taking into account the evidence/information pertaining to the protective measures available in the state of habitual residence’ (paragraph 41).
Arguably, as time passes, there would be more information/evidence available, although such information/evidence could quickly become outdated. Further, the issue of risk of psychological harm (which was not considered in Re PT) may be raised, with it being widely acknowledged that there is an increase in anxiety and fear as a result of the pandemic. As lockdown across Europe contains to gradually ease, it remains to be seen whether there will be any future evaluations of whether Covid-19 constitutes a grave risk of harm.
At present, the position following Re PT remains that the risk of contracting Covid-19 was insufficient to amount to ‘grave harm’ exception as required by Article 13(b). However, with new health and safety challenges arising worldwide (whether through infectious diseases or conflicts), the ‘grave risk of harm’ exception is likely to continue to be invoked, perhaps more often than before.