The Supreme Court (Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt, Lord Burrows and Lord Stephens) hands down its judgment in G v G  UKSC 9. The interveners in the appeal were (1) the Secretary of State for the Home Department, (2) the International Centre for Family Law, Policy and Practice, (3) Reunite International Child Abduction Centre, (4) Southall Black Sisters, (5) United Nations High Commissioner for Refugees and (6) International Academy of Family Lawyers.
The Supreme Court’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.
The parties to this appeal were the parents of an eight-year-old girl (“G”). G was born in South Africa, where she has been habitually resident all her life. In March 2020, G’s mother wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody. G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. The mother opposed his application on the ground, in particular, that there is a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation. The mother identifies as lesbian. She alleges that after separating from the father and coming out, her family subjected her to death threats and violence. On her arrival in England she applied for asylum on the basis of her fear of persecution by her family. She listed G as a dependant on her asylum application.
The High Court, on the father’s application to return G to South Africa, held that the determination of the 1980 Hague Convention application should be stayed until the Secretary of State had determined G’s asylum application.
The father appealed from the High Court’s order to the Court of Appeal. The Court of Appeal allowed the father’s appeal and held that the High Court was wrong to proceed on the basis that there was a bar to determining the 1980 Hague Convention application, because 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 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. The Court of Appeal also that the High Court should be slow to stay such application prior to any determination in relation to the asylum claim.
The mother appealed to the Supreme Court from the Court of Appeal’s order allowing the father’s appeal.
The Supreme Court holds that the protection from refoulement of a child who can objectively be understood to be an applicant for asylum applies during the determination of their application by the Home Secretary and an asylum claim is not determined until the conclusion of any appeal. While the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim. There is no bar to the High Court deciding the 1980 Hague Convention application prior to the determination of the asylum claim, however, and it should be slow to stay 1980 Hague Convention proceedings. A reasoned judgment on whether the child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist the prompt determination of the asylum claim by the Home Secretary. The High Court has power to set aside its decision if the asylum claim is successful.
The Supreme Court adds that all those involved in the 1980 Hague Convention proceedings, including the Home Secretary in determining any related application for asylum, must act promptly if the United Kingdom is to fulfil its obligations under the 1980 Hague Convention. Various steps are proposed to coordinate related 1980 Hague Convention and asylum proceedings with a view to their prompt determination. These include requesting that the Home Secretary intervene in 1980 Hague Convention proceedings; consideration by the High Court of whether to make documents in those proceedings available to the Home Secretary, and whether to order disclosure of the documents in the asylum claim to the 1980 Hague Convention proceedings; joining the child as a party with independent representation; and assigning any asylum appeal to a High Court Family Division judge. The Home Secretary has also proposed an expedited process for determining asylum claims with concurrent 1980 Hague Convention proceedings.
In the end, the Supreme Court maintains the Court of Appeal’s order allowing the father’s appeal and setting aside the stay imposed by the High Court.
Zane Malik QC was instructed by Dawson Cornwell for the father.
The Supreme Court’s judgment is available here.