The impact of Covid on family life has presented parents with many challenges. Home schooling may now, hopefully, be a thing of the past, but many separated parents will need to consider if they can safely comply with their obligations under child arrangements orders requiring children to cross borders while juggling the practicalities of Covid restrictions in different countries.
Given the lack of specific Court guidance regarding international travel, the key principles are flexibility and communication between parties; mediation and negotiation where necessary and the need to demonstrate a sensible and reasonable reason for failing to comply with a child arrangements order. This will involve looking at the practical implications of travel, the implications on the child's health, or adults living with the child and the impact that self-isolation might have.
Legal requirements and parental responsibility for foreign travel
The law requires people who have parental responsibility for a child (that is parents married at the time of the child's birth, named on the child's birth certificate or given parental responsibility by virtue of a court order) to agree on the arrangements for foreign travel with children. If parents can't agree, then they can only take the child out of the country with the court's permission, which involves them making an application to court as soon as possible so the court can determine what is best for the child. The only exception to this is if one parent has an order of the court that confirms the child is to live with them, in which case they are allowed to take the child out of the country for a period of four weeks without the other parent’s consent.
In view of the limited time available for courts to hear cases before the end of the summer holidays, parents who can't agree on holiday travel are best advised to consider an out of court dispute resolution method, such as mediation or arbitration, which will enable them to resolve the dispute quickly and at a time suitable to them. Mediation requires the parties to come to an agreement voluntarily and through a process of negotiation whereas arbitration involves the parties jointly engaging their own impartial and independent “judge” to listen to the arguments as if in court and produce an “award” or result, which will bind the parties as if it were a court order.
If one parent takes the child out of the country without the other’s consent then they could be guilty of child abduction, so parents should either agree on the travel or ask the court / arbitrator to make a determination.
Parents will of course have to consider isolating both on arrival in a country of their choice and on their return to this jurisdiction. They will also need to consider whether or not isolation has an impact on the time that the child might spend with their other parent on their return and how this can be agreed.
Current guidance under Family Court child arrangements order
The current guidance on compliance with a Family Court child arrangements order was set out by the President of the Family Division in March 2020. That advice says that children under 18 can be moved between households if the parents are not living together, despite the stay at home provisions that were then in force. However, they need not do so if there are risks involved either to the child's health, or any vulnerable individuals in one household or another. The guidance encourages parents to make a "sensible assessment of the circumstances" in relation to the movement of children between households and look to a reasonable position taking into account all relevant factors.
The guidance did not specifically cover travel between jurisdictions pursuant to a court order and there are very few cases where the courts' approach to what is reasonable and sensible in the circumstances has been tested. However, in April this year a High Court judge reviewed a case where a mother was unable to comply with an order made in the United States requiring her and the child to fly to the USA to have contact with the father. The child did not have contact through most of 2020 because of Covid restrictions and the father was unable to travel to the UK to visit the child. The father brought an application for contempt of court on the basis that the mother's behaviour was "fraudulent" and sought full custody of the child in the US.
Although the case focussed mainly on child abduction issues, the judge did say that he was satisfied that the mother had not "wrongfully retained" the child in this country, which gives some indication that he felt her approach to travelling to the USA during Covid was not wrong or unreasonable.
If parents cannot agree what is a reasonable approach then one party could make an application to vary the order so that they are not in breach if they don’t (or can’t) travel. The court will have to look at who acted reasonably and sensibly in the circumstances. This will include whether parents agree to make up time that a child misses with the absent parent on a face-to-face basis by having regular Zoom, WhatsApp or other online contact.
Given Covid continues to cause further uncertainty in relation to international travel, and more countries are moving from the green to amber list, specific guidance from the courts on international travel for children subject to court orders would be welcome.
If you require any further advice on international travel, please contact Hetty Gleave at Fladgate LLP.