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Hague Convention Return Orders and Asylum Applications

Re G (A Child) (Child Abduction)

Kim Lehal, a partner in our family law department, recently represented the charity Reunite in the ground-breaking case of Re G (A Child) (Child Abduction)

Founded in 1987, the Reunite International Child Abduction Centre provides advice, support, mediation, research and policy information on the issues surrounding the international movement of children.  In this case, the balancing of the desirable outcome of having a child promptly returned to their country of habitual residence under a Hague Convention application whilst avoiding expelling or returning a refugee to a country where they may face persecution was the main issue the Court of Appeal was asked to consider.

It was held that the Judge at first instance had been wrong to stay proceedings because there was a bar to determining an application under the Hague Convention.  Contrary to the facts provided to the Court, no independent application for asylum had been made by or on behalf of the child.  However,even if there had been there was no bar to determining the application or making a return order.  It was determined that a return order under the Hague Convention could not be implemented if the child in question has requested asylum.

The decision is being appealed to the Supreme Court and Kim will again be representing Reunite who have been granted permission to intervene.

Below are the details of the Court of Appeal decision.

Background

The Appellant father (F) was an EU national, who had lived and worked in South Africa for over 20 years.  He married his child’s (G) South African mother (M) in 2010 and G was born in 2012.  M was habitually resident in South Africa.  She told the Court she came from “a very traditional African family”. 

Like her mother, G had dual EUMS/South African nationality but has always been habitually resident in South Africa. 

M stated that her marriage was difficult and that F was abusive towards her –which F denied.  The couple separated in 2014.  F moved to another house, a few kilometres away from M’s home.  M stated that F continued to be aggressive and abusive towards her.  Adding to the pressure, M was diagnosed as HIV positive.   G continued to live with M, and F enjoyed regular contact.  The couple divorced in 2018 and a South African equivalent of a Child Arrangements Order was made.  Under the Order, F and M shared full parental rights and responsibilities concerning G, who continued to live with M but had extensive contact with F on alternate weekends and for half the school holidays.  F also regularly picked up G from school and paid M maintenance, and also financially covered things such as school fees.

M removed G to the UK without consent. F applied under the Hague Convention for G’s immediate return.  M claimed asylum in the UK on the grounds that she had received threats from her family and was at risk of persecution because she was a lesbian.

The Secretary of State mistakenly believed that an asylum application had also been made on G’s behalf.  M opposed the father's application under the Hague Convention on the basis of the grave risk to G and G’s own objections.  The judge at first instance concluded that the Hague Convention application should be stayed until the Secretary of State had determined G's asylum application.  The Secretary of State later confirmed that no asylum application had been made by G, only by the mother with G listed as her dependant. 

Issues for the Court to consider

F appealed the decision and the following matters had to be decided by the Court of Appeal:

  1. Does the fact that a child and/or taking parent is awaiting the outcome of a pending asylum claim or appeal or have refugee status mean that a return order under the Hague Convention cannot be made or implemented?
  2. If there is no bar to the determination of a Hague Convention application under such circumstances, how should the Court go about its task of deciding whether to determine or to stay the application?
  3. What part should the child play in such an application?
  4. What steps should the Court take to regarding notifying the Secretary of State of the Hague Convention application and disclosing any material used in that application?

The Court of Appeal decision

Regarding issue 3, the Court stated a child should be joined as a party to Hague Convention proceedings concerning them.  And at para 166 of the judgment, guidelines regarding notifying the Secretary of State of the Hague Convention application and disclosing any material used in that application were provided.

The Court concluded that there was no bar to determining or making a return order under the Hague Convention if there is a pending asylum claim by the child in question.  However, it was held that there was a bar to implementing a return order under the Hague Convention if a child was awaiting the decision of an asylum application.

“The position of a child who has a pending independent application for asylum is that he or she cannot be returned to the country of his habitual residence under the 1980 Hague Convention until the application is determined, because of the effect of article 7 of the Procedures Directive.  By requiring asylum applicants to be allowed to reside pending the determination of an asylum application made by them or on their behalf, article 7 prevents or bars the removal (and, hence, the refoulement) of refugees during the pendency of their application for refugee status.”

Furthermore, there was no bar regarding the implementation of a return order where the child was named as a dependant in a parent's application for asylum but made no independent claim.  Therefore, the father’s appeal succeeded because:

“…we have concluded that the judge was wrong to proceed on the basis that there was a bar to determining the 1980 Hague Convention application, because (i) contrary to the facts as she had been given them, no independent application for asylum had been made by or on behalf of G, and (ii) in any event, there was no bar to determining the application or even to making a return order, as opposed to implementing any such order.”

We will update this article once the Supreme Court has given its decision later this year.

Kim Lehal is a Partner in our family law department.  She is on the International Child Abduction and Contact Unit (ICACU) and Reunite panels of recommended lawyers. Kim is also a founding member of the Child Abduction Lawyers Association is currently its membership secretary.  To contact Kim for more information about her role in this landmark decision, please phone 01788 557670 or email kimlehal@brethertons.co.uk.