Holiday & corona: does change of plans lead to child abduction?
By means of: Mindy Mosk
Although peace seems to be gradually returning to the Netherlands after the outbreak of the coronavirus, we still receive corona-related questions every day. For example, the summer holidays are just around the corner and parents are wondering whether they are allowed to go on holiday with their child. When a parent takes a child to another country without the permission of the other parent with parental authority or keeps them there, this is called international child abduction. But what if a parent - with the permission of the other parent - goes abroad and does not want to return to the Netherlands because he/she believes that it is safer in the holiday country than in the Netherlands? Is this a case of child abduction? The answer is yes. And then?
Is the coronavirus a valid reason to refuse a return?
At (inter)national level, several regulations have been drawn up to protect children from international child abduction. The Hague Convention on Child Abduction (HCAC) is the most important treaty for international child abduction practice. The HCAC aims to protect children from the harmful consequences of child abduction in an international context. The starting point is that the child is returned as soon as possible to the country where it had its habitual residence before the abduction. The convention therefore has a limited number of grounds on which a judge can refuse return, the so-called 'grounds for refusal'.
One of the grounds for refusal is that the child does not have to return if there is a serious risk that the child will be exposed to physical or mental harm or otherwise put in an unbearable situation by returning. Does the outbreak of the coronavirus mean that the child is at serious risk of physical or mental harm if it returns to the country from which it came? Probably not. An appeal to this may only be granted by the court in extreme situations. The question is whether the coronavirus falls under this.
On March 31, 2020, The High Court of England and Wales held that this was not the case in the situation where the children had to return from the United Kingdom to Spain. Circumstances that were taken into account were:
- Although air travel carries an increased risk of infection, this risk is reduced due to the low number of travelers;
- The child did not belong to a risk group;
- In both countries there was a serious health risk, but there was no evidence that one country was safer than the other.
It Knowledge Centre for International Private Law and Foreign Law (IJI) has criticised the English ruling. It claims that insufficient attention was paid to government measures in both countries with regard to the protection of children in times of corona.
In the Netherlands, there are no known court rulings in which the 'abducting' parent invokes a ground for refusal in connection with the coronavirus. There are two known rulings in which the child was transferred to the Netherlands and the Dutch judge decided to send the children back to the country of origin (Italy and the United States respectively). The judge concluded that when returning to Italy resp. United States is not possible due to government measures - for example due to cancelled flights - the child had to be handed over to the parent left behind in the Netherlands. In both cases the parents left behind had already travelled to the Netherlands.
Conclusion
In short, leads a change of plans from holiday plans to child abduction? If the other parent with parental authority does not give permission for the holiday or for a longer stay in the holiday country, then there may indeed be a child abduction. As a parent, you do not want it to get to that point. Make sure that you as parents talk to each other and discuss what the travelling parent will do when the coronavirus flares up again. Parents often have the same interest in mind and that is the interest of the child. Making clear agreements in advance prevents problems later.
Do you have questions about going on a trip with your child? Does the other parent not want to give permission for the holiday? Or does your ex-partner want to stay longer at the holiday destination, but you do not agree with this? Contact contact with our office. We will be happy to help you.
