Success at the Court of Appeal in landmark international child abduction case

The Court of Appeal (Lord Justice Hickinbottom, Lord Justice Moylan and Lord Justice Peter Jackson) hands down its judgment in G v G (A Child: Child Abduction) [2020] EWCA Civ 1185 and allows the appeal for the Appellant father. The interveners in the appeal were the Secretary of State for the Home Department, the International Centre for Family Law, Policy and Practice, Reunite International Child Abduction Centre and Southall Black Sisters.

The Court of Appeal's judgment deals with issues of some importance in relation to the interplay between obligations of the state, on the one hand, under the Convention on the Civil Aspects of International Child Abduction concluded on 25 October 1980 ("the 1980 Hague Convention") as incorporated by the Child Abduction and Custody Act 1985 ("the 1985 Act") and, on the other hand, under immigration law including the Convention and Protocol relating to the Status of Refugees adopted on 25 July 1951 and 16 December 1976 ("the 1951 Geneva Convention") and relevant European Directives; and, notably, the apparent tension between the objective of the former expeditiously to return a wrongfully removed or retained child to his home jurisdiction and the principle of the latter that refugees should not be refouled (i.e. expelled or returned to a country where they may be persecuted), and also issues as to the rights of children in the context of such situations – [1].

The case involves a child, G, who has always been habitually resident in South Africa – [6]. For a child to leave the jurisdiction, South African law requires the written consent of all those with full parental responsibility – [8]. In February 2020, the mother, without the consent of the father, took G to England – [10]. Under the disclosure orders, on 12 May 2020, the Secretary of State confirmed an address for the mother; and also confirmed that an application for asylum had been made "by or on behalf of" the mother and "by or on behalf of" G on entry into the UK on 2 March 2020 – [12].

On the father's application to return the child to South Africa, Mrs Justice Lieven held that the determination of the 1980 Hague Convention application should be stayed until the Secretary of State had determined G's asylum application – [18].

On the father's appeal, the Court of Appeal considers, and gives guidance on, five issues – [24]:

• In the context of an application for a return order under the 1980 Hague Convention and 1985 Act, does the fact that the child and/or the taking parent have refugee status or a pending asylum claim or appeal act as any form of bar to the determination of the application or the making or implementation of any return order?
• If so, does it act as a bar (i) to the determination of the application or (ii) to the making of a return order or (iii) only to the implementation of any return order?
• If there is no bar to the determination of the application, how should the court go about its task of deciding whether to determine or to stay the application?
• What part, if any, should the child play in the application?
• What steps should the court take to apprise the Secretary of State of the application under the 1980 Hague Convention and any material used in that application?

On the first issue, the Court of Appeal addresses the position in relation to four categories – [115]:

• A child who has had his or her refugee status recognised by the Secretary of State.
• A child who has made an independent application for asylum, pending determination of the application.
• A child who has made an independent application for asylum which has been refused but has appealed, pending determination of the appeal.
• A child in respect of whom no independent application for asylum has been made, but who has been named as a dependant by a principal asylum applicant.

In relation to category (i) (child with refugee status), the Court of Appeal holds that subject to the exception of those who are said to have "refugee status" under the API despite not being refugees, children with refugee status cannot be returned under powers within the 1980 Hague Convention to the country from which they have been given refuge (or to a third country from which they risk being removed to such a country) – [127].

In relation to category (ii) (child with pending asylum application), the Court of Appeal holds that where an application for asylum has been made by or on behalf of a child, that operates as a bar to return in 1980 Hague Convention proceedings during the pendency of the application; and it will continue to operate as a bar after the end of the Brexit transition period on 31 December 2020 – [131].

In relation to category (iii) (child with a pending asylum appeal), the Court of Appeal holds that it is vital that steps are taken to avoid asylum appeals being used as a tactical device to delay and potentially prevent the return of children under the 1980 Hague Convention – [136].

In relation to category (iv) (child with no asylum application), the Court of Appeal holds that there is no bar where the child is named as a dependant in an application for asylum by a parent, but makes no independent claim for international protection – [137].

On the second issue, the Court of Appeal holds that any bar applies only to implementation: even where a child cannot be returned under the 1980 Hague Convention because he or she has been granted or has applied for refugee status, the High Court is not prevented from determining an application for a return order, or indeed from making a return order; although, if a return order were to be made, it may be required to stay implementation – [152].

On the third issue, the Court of Appeal holds that the High Court should be slow to stay an application prior to any determination – [154]. The Court of Appeal adds that the relevant matters would include – [161]:

• Potential timings for both the 1980 Hague Convention application and for the asylum claim, and the stage which the asylum claim has reached.
• The nature of the alleged risk in the application for return and the asylum application (so far as that is known).
• The adverse impact – in practice, and in terms of their rights and interests – on both child and each parent in being separated.
• In particular, the welfare of the child, including the degree of urgency in determining welfare issues that arise and the ability of the court, within the constraints of a 1980 Hague Convention application, to deal with such issues whilst the application is pending.
• The human rights of both child and each parent.

On the fourth issue, the Court of Appeal holds that when the taking parent has made an asylum claim (and a fortiori when a claim has been made on behalf of the child the subject of the application under the 1980 Hague Convention) the child should be joined as a party to the Convention proceedings.  This applies equally to circumstances in which the taking parent and/or child have been granted refugee status; and, for these purposes, the grant of rights to the child by the Secretary of State because of the grant of refugee status to the parent – [163].

On the fifth issue, the Court of Appeal holds that the Secretary of State needs to be informed about the following matters, so that she can take appropriate steps and use her best efforts to prioritise the determination of a pending application or the reconsideration of the grant of asylum in line with her duty to ensure expedition in 1980 Hague Convention applications – [166]:

• Where the child is said to have refugee status, the High Court should promptly ask the Secretary of State whether this is a reflection of a determination that the child is a refugee as defined in article 1A of the 1951 Geneva Convention or simply as a the result of the child being a named dependant of a successful asylum application by a parent.
• The High Court should promptly inform the Secretary of State that an application has been made under the 1980 Hague Convention when the court is aware that an asylum claim has been made by the taking parent or the child. In the absence of powerful reasons to the contrary – and it is not easy to conceive of any such reasons – the papers in the Convention application should be disclosed to the Secretary of State.
• The High Court should promptly inform the Secretary of State in the event that it decides to stay the determination of the application under the 1980 Hague Convention pending the resolution of the asylum claim(s) and/or appeal(s).
• The High Court should promptly provide the Secretary of State with the court's judgment determining the application under the 1980 Hague Convention.
• The High Court should request the Secretary of State to keep the High Court informed of the progress of the asylum claim(s) and/or appeal(s) and of any reconsideration of refugee status.

In the end, the Court of Appeal holds that Mrs Justice Lieven 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 – [184].

The Court of Appeal, accordingly, allows the appeal of the appellant father.

Zane Malik was instructed by Dawson Cornwell for the Appellant father.

The Court of Appeal's judgment is available here.