In a parenting matter heard in the family courts in Adelaide, given the pseudonym “Quincy & Quincy”, a father and mother had to deal with the impact of the pandemic when the English born mother wanted to take the kids to the UK for three months against the father’s wishes. What does this case tell us about how children’s overseas travel during COVID might be treated by the courts?
The mother, an Australian resident but UK citizen, had been undergoing health issues and was homesick for her family. In the case, which also dealt with time sharing arrangements for the toddler children, the father opposed the children’s travel during COVID on the grounds of risk. And the judge agreed with him, forbidding the children from leaving Australia. An injunction was granted restraining the mother from removing the kids from Australia unless the father consents. The children were placed on the AFP’s Family Law Watchlist.
The mother initially asked for permission to take the children to the UK for a holiday for three months, which she later amended to two. Strangely, the father actually appears very compromising; while opposed due to the significant health risks due to the pandemic, he later submitted for her to travel there for one month. The judge, however, shot this down.
“Whilst it is likely that the mother could arrange for the travel to the United Kingdom, there is no certainty of her ability to return the children to Australia either after the one month period as proposed by the father or the two month period proposed by her.”
What does this case tell us about how children’s overseas travel during COVID might be treated by the courts?
Despite the mother having strong reasons for wishing to travel, that in other times would not be seen as unreasonable, these could not outweigh the need to keep the children safely within Australia for now.
In the past, the country of destination in a children’s overseas travel case mattered a great deal, with certain countries presenting clear dangers to Australians. Other countries are not signatories to The Hague Convention, and travel permitted there presents international child abduction dangers to some parents.
However, in a pandemic, the country of destination may not really matter as much, since children are already at real risk of not being able to return to Australia. The judge in this case noted “the difficulty of Australian citizens wishing to return to the Commonwealth of Australia from an overseas destination is notorious”.
Some countries are likely still worse than others. Even though in the past you’d never imagine Britain being treated as a bit of a dangerous Third World country, here we are…As the judge notes, “It is uncontroversial that the COVID-19 pandemic has overwhelmed the United Kingdom health system.”
Children also face quarantine impositions on both legs of international journeys, a point the judge also made in this case:
“The very fact that it is likely the children will need to quarantine, both in the United Kingdom on their arrival and in Australia on their return, would seem to be inconsistent with the best interests of the children.”
In the end, because of the “prospects of isolation, risk of infection and inability to return to Australia”, you may be facing an uphill battle to convince a family court judge that it’s in the children’s best interests to embark on overseas travel right now.
You can read this case in full here.
You might also like to read our blog on the usual process for obtaining consent from your co-parent to travel with your children.
Do you need assistance with a parenting matter? For a free first conference, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (020 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
