The International Social Service Australia (ISS) Legal Service is increasingly seeing parents overseas responding to applications to return abducted children to Australia by arguing that the risks associated with COVID-19 present a grave danger to their child if the child is ordered to return to Australia under the 1980 Hague Convention.
The Convention ensures the prompt return of children who have been abducted from their country of habitual residence.
ISS Australia Chief Executive Peter van Vliet said that the use of COVID-19 as an argument not to return children by taking parents was very concerning.
“What we’re seeing with COVID-19 is that while courts are still issuing return orders of abducted children overseas, in some cases once a return order is made, the return process is taking longer than usual,” Mr van Vliet said.
“In ordinary circumstances, a child would return to Australia once a return order had been issued by a court but now that parents can argue the risks of international travel due to the pandemic, there is an added level of complexity to these matters which in some cases can cause delays.
This can be extremely distressing for parents.”
ISS Australia typically manages 70 cases of international child abduction each year.
Since the pandemic began, ISS Australia has seen the growing use of COVID-19 as an excuse by taking parents not to return a child to Australia.
“ISS Australia is currently managing a number of cases where the taking parent has argued that the child can’t be returned due to grave risk posed by COVID-19,” ISS Australia Managing Lawyer, Rebecca Chapman said.
“These clients are particularly distressed at the delay caused by COVID-19 not only with delays to court processes but also because of the extra complications in relation to applying for travel exemptions and making arrangements to pay for quarantine upon return to Australia.”
What case can be referred to?
Brian (not real name) has recently been reunited with his child after her mother used COVID-19 to argue that returning their child to Australia would put the child at grave risk of physical harm from the increased risks posed by COVID-19 and international travel.
While the Judge found that COVID-19 did not pose a grave risk to the child and ordered the return of the child to Australia, the prolonged period of waiting took its toll.
“It was very difficult for me, and I had a lot of trouble sleeping,” Brian said.
“I felt I was in an extremely difficult position. I want to be a good father and I didn’t want to put her at any risk, but I also wanted her home with me.
“For any parent knowing that you have to wait longer to see your child and not knowing what changes might occur in the meantime is hard. I was constantly wondering what was going to happen next.”
The 1980 Hague Convention does not call for a comparison of risks between two relevant countries.
“This was the case in the UK recently where a court noted the difficulty in gathering information related to COVID-19 given the speed at which the pandemic was developing.
It found that while the pandemic was at a more advanced stage in Spain than in the UK, it could not conclude that either country was more or less safe than the other, and couldn’t make any findings as to the relative likelihood of contracting the virus in either country,” Ms Chapman said.
“Although we can’t say what decisions other courts may reach with respect to this issue, this is a promising outcome for left behind parents in Australia.”