Covid-19 provides particular problems for parents with an international background. Many parents either want or need their children to travel during the school holidays to visit the other parent or close family. Disputes between divorced parents regarding holidays due to Covid-19 are on the rise. In the past few months there have been several court cases brought requesting permission to travel in spite of opposition from the other parent.
The courts have set out some criteria to decide whether withholding permission is warranted.
Holiday or family visit
The courts are more likely to grant permission if the trip is to visit a parent or other close family. Heading on holidays to a country not connected to family will be judged more strictly during the Covid-19 crisis.
Advice Dutch Ministry for Foreign Affairs
The Dutch ministry for foreign affairs provides travel advice as to the safety of a country. Countries are ranked into four categories:
- Green (no particular safety risks);
- Yellow (watch out: safety risks, but no travel restriction);
- Orange (serious safety risks, only necessary travel);
- Red (do not travel).
These travel advisories are not binding, but the courts do use them as clear guidelines for determining whether travel is possible or safe for children. Countries with a green or yellow status are generally acceptable to travel to. However, if code yellow has been applied because of an increase in the level of Covid-19 infections, even yellow can result in a refusal to travel.
For countries or areas with an orange status, the judge will determine whether travel is necessary or not. Visiting family may or may not qualify as necessary in each individual case. To date no court has permitted travel to a country with code red (for obvious reasons).
Length of journey and ease of repatriation
The Covid-19 crisis has lead the courts to consider these factors along with the official travel advice. Some countries, such as Morocco, banned all travel during the initial Covid-19 lockdown. It took many weeks for people to be repatriated.
In a recent appeal case, a request by a mother to take her daughter to Indonesia to visit her grandmother was refused, based partly on the fact that if the mother fell ill, the father would not be able to travel to Indonesia to pick up the child due to current restrictions in Indonesia. There was also no guarantee of flights if the situation in Indonesia deteriorated. The travel advisory to Indonesia was also orange and not likely to be reduced in the near future.
Specific health risks
If a child has health problems that put it at special risk, then the courts may refuse travel. In a recent case, the court refused permission for three siblings travel to Switzerland (code yellow) to visit their father. Two of the children had asthma and during the journey by aeroplane, they would be exposed to many other individuals and potential virus carriers. This judgement is remarkable as the Dutch authorities consider flying with a face mask as safe.
In another recent case, permission was refused for a holiday to Italy (code yellow). The child was obese and had limited fitness from illness at an early age. In this case, it was probably also a factor that this was purely a holiday and the child did not need to be exposed to the extra risk of travelling abroad.
If the children are healthy, then the parent that wishes to take the children on holiday has the freedom to choose the destination. Covid-19 may not be used as an excuse to block all foreign holidays. The courts uphold the parent’s right to choose where the children spend their holidays, as long as this does not pose extra health risks. Some courts have granted permission to travel, conditional on the travel advice remaining green or yellow at the time of the visit.
Even though some of the recent cases are conflicting, there are some careful lessons to be taken from them.
- If a country has a green or yellow code and your children are healthy, then most likely you can travel for family visits.
- In case of holidays, it depends on the situation in the country at the time of travel. Green or yellow codes are generally ok, but
- If a child has health issues a refusal is more likely if code yellow applies to the destination.
- Travel outside of Europe is viewed more critically than travel within Europe.
The summer holidays are nearly over. However, until a cure or vaccine for Covid-19 is found, disputes will remain. If you have any questions or need legal advice regarding upcoming holidays and Covid-19, please contact us: