COVID-19 and the Convention: The pandemic is exceptionally unexceptional

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By Rachael Murray, Partner and Alexandra Moles, Partner 

More than a year after the declaration of the pandemic, COVID-19 continues to impact families and their family law issues; none more than those engaged in a dispute regarding international removal of children by estranged parents. The Hague Convention on Civil Aspects of International Child Abduction (the Convention) governs the process through which parents in member countries, of which Australia is one, can recover their children who have been abducted by the other parent internationally. A recent case in the Family Court of Australia, Department of Communities & Justice & Kingsley (No. 2) [2021] FamCA 308, exemplifies the Court’s recent views on how the circumstances of the pandemic, international travel, quarantine requirements and state of emergency declarations may affect Convention proceedings.

The child at the centre of the proceedings was one and a half years old at the time of the hearing. She had been removed from Canada by her mother to Australia without her father’s knowledge or consent in February 2020, just prior to the escalation of the pandemic. In November 2020, the Court made an order pursuant to regulation 16 of the Convention that the child be returned to Canada and that the mother pay for the expenses she may incur in doing so. The mother appealed this decision under regulation 19A(2) of the Convention. Her first ground was that circumstances had arisen that made it impracticable for the order to be carried out. In support of this, the mother raised that the province to which the child was to be returned was in a “State of Emergency”, however this had been in place since the beginning of the pandemic and thus this circumstance had not arisen since the November 2020 orders. The second ground on which the mother appealed was that exceptional circumstances existed that justified the return order being discharged. The mother raised that the inflated cost of international travel during the pandemic as well as the costs of quarantine satisfied the threshold of “exceptional circumstances”. At the time of the hearing, the government of the province only required international travellers to quarantine in a hotel for three days, before undertaking quarantine in a private residence for the remaining eleven days. Rees J held that the mother’s inability and unwillingness to facilitate and pay for the expenses incurred as a result of her travelling with the child back to Canada was not an “exceptional circumstance”. The mother finally asked the Court to consider whether the Australian Government’s health advice to not travel to Canada due to the increased risks of COVID-19 and disruptions to global travel constituted an “exceptional circumstance”. Her Honour referred to the numerous international precedents from the United Kingdom, Israel and Germany in which it was consistently held that the risk of contracting COVID-19 in the country to which the child was to be returned or in transit was not sufficient to be considered an “exceptional circumstance”. However, the Court did suggest that an “exceptional circumstance” may include if the child is mentally or physically vulnerable, that the risk of infection in the country to which the child is being returned is substantially greater or that the country to which the child is being returned does not have sufficient medical care available. In light of this recent decision, it is pivotal that return orders continue to be complied with despite the ever-changing nature of the pandemic and that parents be properly informed about their obligation to comply, whilst also alleviating their anxieties surrounding COVID-19 and international travel.

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