Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis
During these tough times, some people might be hankering for home if they live far from their extended families or their home country, even if they currently live with their children here. If their home country is less affected by COVID-19, they might view it as a place of safety and want to take their child there now. Some parents may be tempted to take the law into their own hands and bring their child to England unlawfully, perhaps hoping that the court would not order the return of a child to their home country in this time of global emergency.
In this blog, we look at some of these scenarios and the questions arising at this unprecedented time for separated parents who either wish to relocate or stop the other parent from relocating overseas (international relocation) or to another part of the UK (internal relocation).
Please note that the general guidance provided below is accurate at the time of writing (20 April 2020). It does not constitute legal advice and specialist advice should be sought in individual circumstances.
If you want to take your child out of the UK, you will need either the agreement of all the people who have what is known as “parental responsibility” for your child (this will usually just be the child’s other parent) or the permission of the court. This applies whether you want to take your child abroad for a short visit such as a holiday or a permanent move. It is a criminal offence of child abduction to take a child out of the United Kingdom England and Wales without this permission. In some circumstances, a parent could be imprisoned. See our previous blog “International families and the price of child relocation without consent”.
Aside from any criminal consequences, if a parent takes a child to another country without the permission of the other parent or the court, then if the country of destination is a signatory to the Hague Convention and the left behind parent applies to court for the child’s return, then depending on the circumstances the court might well order that the child is returned to the country that they have just left. The parent will then have to apply to the court of the country that they have been sent back to for permission to relocate which may look on them unfavourably and see them as untrustworthy if they had previously taken the child abroad without the requisite permission.
In the very recent case of Re PT (A Child)  EWHC 834 (Fam), the English court demonstrated that, even in this time of a global pandemic, it will ensure that a child who has been brought to England unlawfully will be returned to the child’s country of habitual residence. In this case, the judge found that the child should be returned to Spain immediately to live with her father in Spain. This was ordered even though the child’s mother, who was the child’s primary carer, had to remain in England as she was eight months’ pregnant, self-isolating and unable to travel, and whilst the pandemic was more advanced in Spain than in the UK. The father issued his application on 10 March 2020, the hearing took place on 27 March 202, via remote hearing using the online platform, Microsoft Teams, and the judge ordered the child’s immediate return to Spain at the end of that hearing. The judgment was handed down by email on 31 March 2020. So, even at this difficult time, cases involving the unlawful removal of a child to another country are still being prioritised by the courts.
If the other parent does not agree to the relocation, you will need to apply to the court. At the current time, the family court is only dealing with urgent applications, and, unless there is an extremely compelling reason for which an application to go abroad or relocate has to be heard urgently, it is likely that an applicant will have to wait until the courts are back to some semblance of normality before their application can be issued. Furthermore, even if there is a compelling reason for travel, the court will have in mind the risk that, once the child goes abroad, they will be stuck there unable to return if the pandemic restrictions in that country (or the UK) mean that borders are closed and travel is impossible. In perhaps extreme, but not unforeseeable circumstances, this could lead to the child’s settling in the country and becoming habitually resident there, which could lead to difficulties in ensuring their return.
Until this month, parents who could not reach an agreement on this issue, even with the help of a mediator, had no choice but to apply to court. Helpfully, the rules on arbitration have been amended to enable parties to ask an arbitrator to determine the issue of relocation (in respect of most countries) without requiring the court’s involvement. This could be extremely helpful given the current circumstances – although both parents would have to agree to attend arbitration, so if the other parent isn’t willing to cooperate at all, the parent who wishes to relocate will have to apply to court and await proceedings.
When the court decides whether or not to grant permission to a child’s relocation, the child’s welfare is its paramount consideration. The court will have to weigh up the various competing factors in the child’s life and the parent who wants to obtain the court’s permission needs to persuade the court that the move is in the child’s best interests.
See our previous video “Moving your children abroad after a separation” and blog about “Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis” for further information.
Whilst it is not a criminal offence to take your child to live elsewhere in the UK without the other parent’s agreement, if they object to the move, the family court can still order the child’s immediate return. The principles governing a move within the UK (an internal relocation) are the same as a relocation abroad and alternative dispute resolution methods (such as mediation or arbitration) would also be available at this time to help resolve a situation in which one parent wishes to relocate. And of course, any travel at the moment needs to be in compliance with the government’s restrictions on staying at home.
See also our previous blog “Moving counties or countries with children after separation - where to now?” for further information.
The President of the Family Court, Sir Andrew McFarlane, has given some helpful guidance about court orders and arrangements for children at this time. I discussed this in my recent blog about “Overcoming the challenges of co-parenting for separated and divorced parents”. He says that parents must be sensible and use their judgement to ensure the safety of their child and other people. His key message is that, where coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child. He explains that, if the children do not get to spend time with the other parent as provided for in their court order, the courts will expect the child to keep in regular contact with the other parent for example remotely – by FaceTime, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
Many children will be anxious about the pandemic and about not seeing their other parent and might not understand why they are unable to see them in person. There are plenty of resources out there about how to talk to children about the pandemic including Cafcass guidance and a book titled “My Hero is You”, which is a storybook for children on COVID-19.
The current coronavirus crisis would seem to rule out foreign travel in this situation, but each case depends on its own facts and parents need to use their judgement. Even if foreign travel is possible, there is the concern that the children might get stuck abroad if further pandemic restrictions in that country mean that they are unable to travel back.
If the court order cannot be complied with and the child has missed out on time with the other parent, it is worth thinking about thinking about how the child’s missed time with the other parent could be made up once the pandemic and travel restrictions have been lifted. It is important to bear in mind that any new arrangements to make up for this time should always be for the child’s benefit and should not be used as a way for the parents to keep an exact tally on each other’s time with the child or as a source of conflict. Each family’s situation is different and in each case the parents will have to consider whether it is practical and in the child’s best interests to make up the lost time.
In the present circumstances, the family court aims to continue with court hearings where it is possible for these to be dealt with remotely. Depending on what stage the proceedings have reached, final hearings might therefore still go ahead.
Depending on the stage of the proceedings and the circumstances of a case, it may be necessary to consider including interim proposals for contact while the COVID-19 restrictions remain in place. As part of a judge’s considerations in a relocation case, they will review the amount of time a child currently spends with each of its parents and the impact that any relocation will have on this. Accordingly, proposals for contact are an important part of the case. Given that the impact of COVID-19 may be felt for some time, both parents (the one making the application and the one defending it) may want to show that proper thought has been given to the practical arrangements for the child to see their other parent in the short and long term rather than simply addressing the long term proposals for contact which may not be achievable for many months.
There may be delays to proceedings while new cases are taking longer to be listed or where, in existing proceedings, experts’ reports are still outstanding. Where experts’ reports involve trips abroad to assess the situation in the country the applicant wishes to move to, it seems likely that the hearing will be delayed to allow for this work to be done. In these circumstances again it might be worth considering arbitration as a way to avoid court delays. See our previous blog on Resolving family disputes through mediation, arbitration and private FDRs during the coronavirus crisis.
If you are faced with challenges about relocation or co-parenting during these unprecedented times, please contact our team of family and divorce lawyers, who have longstanding experience in resolving disputes around child arrangements and in advising parents who wish to take their child abroad to live and relocate after separation or divorce - and equally in advising parents who want to prevent such a move.
Rachel Freeman is a Partner in Kingsley Napley’s family and divorce team. Her areas of practice include all aspects of private family work, with particular expertise in complex financial proceedings and arrangements for children.
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