Abduction in times of corona
Much to the ire of certain abducting parents, it is still business (almost) as usual for the High Court of Justice in London. Although the UK is on lockdown preventing people from leaving home bar in very specific circumstances, our courts have been obliged to adapt exceptionally rapidly. Family lawyers are in totally new territory: for a steadfastly cautious profession known more for its wigs and gowns rather for than for its working of Google Hangouts, the last month has been a very, very steep learning curve. With detailed and radical guidance emanating from our highest judges and professional organisations effectively overnight, the profession is gradually getting used to hearings occurring remotely – either by telephone, or by webcam.
So how is it going so far? Although it has not been without some bumps in the road, the higher courts are functioning with relative ease. Judges have been removed from the Victorian-gothic splendour of the Royal Courts of Justice in central London, and are now presiding over hearings from their spare rooms and kitchen tables. Non-urgent work has been placed on the backburner, and those that can be dealt with remotely should proceed. There has been a recognition that certain cases are simply too complex to be determined remotely, and they have been effectively paused until normal service resumes. In determining whether any case can take place, a delicate balancing act has to be undertaken between avoiding delay on the one hand, and granting an adjournment until an ‘in person’ hearing can take place on the other. Never before have we realised just how much we value ‘live’ advocacy, and the benefit of seeing the whites in witnesses’ eyes just as they step into the witness box.
The more pressing cases, however, remain listed. The show must go on.
Amongst the more urgent work is, of course, international child abduction. My firm had the somewhat dubious honour of organising two of the very first final hearings, just days after the lockdown was announced. Both have been reported as VB v TR, and Re PT. Whilst it did take some time for us to find our feet, in both cases we were able to have fair hearings involving the parties, advocates, social workers, and judges – all from their own homes. The connections worked reasonably well and allowed for live, sworn evidence was heard, and in both cases, the Court was able to determine the applications as if they were being heard in person. In both cases, the subject children were also ordered to return to their respective states of habitual residence. So far, so good.
Restrictions on international travel, however, have thrown a huge corona-shaped spanner in the works. Getting a child back to their state of habitual residence is another endeavour entirely; the very nature of this pandemic has enormously complicated the return of abducted children, amidst the backdrop of international lockdowns and airspaces shutting by the hour.
By way of example, in one of my cases, a father travelled from South America to England to collect his abducted child, pursuant to a court order obtained before lockdown. Upon transiting in Europe however, his flight to South America was cancelled whilst he and the child were in the departure lounge – only for him and the child to be then placed into government-mandated quarantine on the outskirts of Amsterdam. It was only after an exasperatingly long month passed that flights on his specific route reopened and he and his daughter could return home.
The return of an abducted children to Poland has become even more challenging as a result of stringent measures put in place by their authorities. Flights between the UK and Poland have been severely restricted, and seats on the few flights that remain in operation are sold on a first come, first served basis. Given that the best part of a million Poles live in the UK, securing two tickets to Warsaw is no mean feat.
A Bermudian child may face government-organised quarantine upon return; a Czech family can only generally enter the country if everyone is a Czech citizen. Commercial air traffic has come to a standstill around the world, and a vast number of countries have barred entry for those who have returned home from coronavirus hotspots. The list of stipulations, lockdowns and conditions is as long as it is complex.
The courts will not only have to grapple with the thorny issues of returning children in the current climate, but also novel points of law. Does the Hague Convention itself become engaged across the board, or should it be subject to the practicalities that perhaps would not be tolerated in normal circumstances? If a child from, say, London, is visiting his father in Italy for a holiday, but is unable to return home because all flights are cancelled and a very strict, nationwide lockdown is implemented, has that father wrongfully retained that child? Separately, would it be in a child’s best interests to be returning to a non-Hague Convention country, if mandatory quarantine is inevitable? Would a return of a child to a state or area engulfed by coronavirus pose a grave risk of harm? How is it that one branch of the state prohibits all foreign travel, yet another branch is considering sending an abducted child abroad?
Some arguments, no doubt, will certainly hold more sway than others, but this pandemic has meant unprecedented factors now have to be considered. Judges and practitioners alike are now in unchartered waters, which may well challenge the very foundations of how we practise international children law. Only time will tell how well our system was able to adapt.
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