A father has failed in his attempt to be awarded a lives-with child arrangements order of his son in a case made complicated by the Covid-19 pandemic.

The father was a US citizen; the boy’s mother was British. The couple began a relationship in 2014 when the mother was working in the US. Their son was born in England in January 2017 while the mother was visiting family.

Some months later, the mother and son resumed living in the US with the father. However, in 2019 the couple separated.

They signed a marital settlement agreement governed by US law, which included arrangements for the mother and son to relocate to England on finalisation of the divorce, and for the boy to attend school in England and stay with the father in the US during school holidays.

The divorce and the agreement were approved by the US court in January 2020. Three days later, the mother and child moved to England.

The mother booked flights for them to travel back to the US at Easter 2020 to visit the father in accordance with the settlement agreement, but the flights were cancelled because of the Covid pandemic.

In the summer of 2020, it was not possible for the son to spend the whole of the planned six-week period in the US, because Covid quarantine obligations would have resulted in him missing the start of his first year at school.

The father refused to accept the mother’s offer of a shorter visit. He began proceedings seeking for the child to live with him on the grounds that the mother was in breach of the agreement.

The High Court refused the application and ruled in favour of the mother.

It held that she had not wrongfully removed the boy from the US. She travelled with him to England in January 2020 three days after the settlement agreement had been approved by the US court and their divorce had been finalised and approved. The travel was completely lawful.

When she left it was before the eruption of the global pandemic, and she had fully intended to comply with the terms of the agreement. She clearly had reasonable grounds not to travel at that time on account of the impact of Covid.

Furthermore, the son had acquired habitual residence in England, as he had developed the requisite degree of integration in a soci

al and family environment.

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Case Citations: AC v NC Family Division, [2021] EWHC 946 (Fam), [2021] 4 WLUK 172,J Mostyn

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