"As the country enters its fifth week of national lockdown and with uncertainty surrounding so many aspects of our lives, one thing for certain is that we will all emerge from lockdown as ""Zoom"" experts. 

Whether that be Zoom quizzes, Zoom drinks, or Zoom dinner parties, the ubiquitous technology has found its way in to all our lives and, love it or hate it, it fills our social calendars. But we may all be less accustomed to receiving the cherished (or dreaded) Zoom invite to conduct an evidential court hearing, which is exactly what happened in the recent English case of VB v TR [2020] EWHC 28.

The Facts

This case concerned a successful application for the return of a child from the UK to the British Overseas Territory of Bermuda under the inherent jurisdiction of the English court where the 1980 Hague Convention on the Civil Aspects of International Child Abduction did not apply, despite both countries being parties to the Convention.

Both parents and the child were born in and had lived in Bermuda for their entire lives. On 6 December 2019 the mother removed the child from Bermuda to the UK in a clandestine manner and without the father's agreement. In doing so the mother was in breach of a court order in Bermuda whereby the father had contact with the child each alternate weekend. The father sought return of the child to Bermuda.

Where both countries are party to the Hague Convention it might have been anticipated that the provisions of this Convention could be invoked. However, for reasons more peculiar than the thought of conducting an evidential hearing in your slippers, it could not.

The Law

The UK is a party to the 1980 Hague Convention which is incorporated into our domestic law by virtue of the Child Abduction and Custody Act 1985. The Convention was incorporated into Bermudian domestic law by the International and Child Abduction Act 1998. Bermuda is not included as a contracting state in the Child Abduction and Custody (Parties to Conventions) (Amendment) Order 2020 (SI 2020/277) because for the purposes of the 1980 Hague Convention, British Overseas Territories are treated as part of the UK. Just as the Convention does not operate between, England and Wales, on the one hand, and Scotland on the other, it does not operate between the United Kingdom, on the one hand, and British Overseas Territories on the other.

Rather than an application under the 1980 Hague Convention, the present case proceeded on the basis of the inherent jurisdiction of the English court. In such cases the court is bound to apply the paramountcy principle (Children Act 1989) which is that the child's welfare is the first and paramount consideration for the court when making an order which is not the same principle applied to an application under the 1980 Hague Convention. The approach under the paramountcy principle was noted by Lord Mostyn, as being

""a far cry from the exercise on an application under the 1980 Hague Convention. In such proceedings the welfare of the child, while a primary consideration, is not the paramount consideration. The court starts from the position that a return should be ordered unless a defence can be demonstrated.""

This is clearly a more onerous starting point than if the application was made under the 1980 Hague Convention and may be more difficult for an applicant to overcome. That the 1980 Hague Convention does not apply between the United Kingdom and its overseas territories was noted by Lord Mostyn as being ""quite frankly bizarre"".

A further concern highlighted by Lord Mostyn was that the enforcement and recognition of orders made in UK Overseas Territories was not automatic which was an unsatisfactory position.

On both fronts Lord Mostyn called for a change in the law between the UK and its overseas territories to ensure that if children are removed from the country of their habitual residence they can be returned to that country by invoking the provisions of the 1980 Hague Convention which seems to be a wholly sensible answer.

So whilst our legislative structure may leave some room for improvement there can be no such criticism levied at the facilitating technology, our dearest Zoom."