Re PT (A Child): Child abduction and the risk of harm from Coronavirus

Image: ian mcwilliams on flickr, licensed under CC BY 2.0

Just a quick post to make a topical point: in a Hague Convention case, does the risk posed by the Coronavirus constitute a risk of physical harm, under Article 13(b)?

The question was considered by Mr David Rees QC, sitting as a Deputy High Court Judge, in the case Re PT (A Child), which was heard remotely on the 27th of March.

The case concerned a father's application for the summary return of an eleven year old child, 'PT', to Spain, the mother having brought the child to England on or about the 13th of February 2020 without (according to him) the father's knowledge or consent.

The mother, who was expecting another child, raised an Article 13(b) defence, including (amongst other matters) the health risks posed by a return due to the current coronavirus pandemic.

I will quote in full what Mr Rees had to say:

"A final argument relates to the risk of physical harm that is presented by the current coronavirus pandemic. This risk presents itself in two ways:

(1) The pandemic is more advanced in Spain than in the UK. As at the date of the preparation of this judgment (29 March) the official death toll stood at 1,228 in the UK and 6,528 in Spain. It could therefore be argued that PT would be at greater risk of contracting the virus in Spain than in the UK.

(2) The increased risk of infection that is posed by international travel at this time.

This is not a matter on which I heard any evidence, and indeed the national and international situation is developing at such speed that any evidence that could be gathered would be likely to be immediately out of date. Taking judicial notice of the existing advice from the UK Government, I have drawn the following conclusions:

(1) From the advice provided by the UK Government, it appears that those who are considered most at risk of serious complications from coronavirus are the elderly and those with underlying health conditions. Neither PT, nor her parents, fall within this category.

(2) PT's mother, because of her pregnancy is, however, in a group that has been advised to socially isolate themselves.

(3) Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other. It is clear that the pandemic is a serious public health emergency in both nations and that the number of cases in the UK is expected to continue to rise in the coming weeks. Both countries have imposed significant restrictions on their citizens in an effort to contain the pandemic. I am simply not in a possession to make any findings as to the relative likelihood of contracting the virus in each country. On the material before me, all that I can conclude is that there is a genuine risk that PT could contract the virus whether she remains in England or returns to Spain.

(4) I accept that international travel at this time potentially carries with it a higher prospect of infection than remaining in self-isolation. However, I understand that limited international flights between the UK and Spain continue to be permitted by those governments for essential travel. From that I infer that the risk of infection posed by air travel, whilst no doubt significantly greater than normal, is not so high that either government has felt necessary to end flights altogether.

Taking all of these matters into account, whilst I accept that the travel associated with a return is likely to increase the risk that PT could contract coronavirus, I do not consider that such a risk, when considered in the context of the likely harm that would be suffered by PT should she contract the virus, is sufficient to amount to the "grave risk" of physical harm required by Art. 13(b)."

The defence was not made out, and a return was ordered.

You can read the full judgment here.