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22 January 2021

Does an asylum claim act as a bar to a return order under the 1980 Hague Convention?

5 mins

G (A Child : Child Abduction) [2020] EWCA Civ 1185

 

Can an application pursuant to the 1980 Hague Convention be determined and a return order implemented if an asylum claim has been made by or on behalf of the child or with the child named as a dependent?

We represented the International Centre for Family Law Policy and Practice (ICFLPP) as an intervener in Court of Appeal proceedings considering the interplay between asylum claims and proceedings pursuant to the 1980 Hague Convention.

In the substantive case, the mother removed the child from South Africa to this jurisdiction in March 2020 and claimed asylum for herself and, she alleged, on behalf of the child. It later materialised that the child had been named as a dependent upon the mother’s separate asylum claim. The mother made some allegations against the father. However, the alleged persecutors for the purposes of her asylum claim were her family members who remained in South Africa. The mother had told her friends that she was a lesbian and she began to be subjected to persecution from her own family. These allegations against her family members formed the basis of her Article 13(b) defence she pleaded in the Hague proceedings.

First instance

At an interim hearing in the Hague proceedings, the judge rejected the submission that the court should proceed to determine the application under the Convention, concluding instead that it was appropriate to stay the determination of the application until the SSHD had determined the mother’s asylum application. The judge further rejected the submission that the court could carry out a preliminary consideration of the merits of the mother’s asylum application. Finally, the judge refused to order disclosure of the documents forming the asylum claim but directed for the papers in the Hague proceedings to be disclosed to the Secretary of State for the Home Department as they were relevant for the purposes of deciding the asylum claim.

Court of Appeal proceedings

The father appealed this decision on several grounds; namely:

  • that the judge erred in relying on an absolute bar as a result of any refugee status to a return under the Convention;
  • that the judge erred in failing to consider (or to investigate properly) the child’s own status within the asylum claim;
  • that the decision to order a stay of the proceedings was in breach of Article 11 of the Convention and;
  • that the judge, on considering the disclosure application, had failed to consider the procedure set out in R v S (a recent case concerning disclosure of asylum documents into family proceedings in which Bindmans acted for the applicant).

Whilst the Court of Appeal determined that there would be a bar to the implementation of a return order if the child had their own refugee status, it did not consider that there would be any bar where the child had no independent asylum claim and no refugee status; for example, in circumstances where they were named as a dependant in an application for asylum by a parent. It was decided that there would be also be a bar to implementation of a return order where a child’s claim for asylum was still pending. The court was not able to make any observations on whether there is any bar to the return of a child with a pending asylum appeal under the 1980 Hague Convention.

It was decided that a bar would only apply to the implementation of a return order and the High Court would not be prevented from determining an application for a return order, or indeed from making a return order. However, if a return order were to be made, it was found that the court may be required to stay implementation. The court went into some detail in outlining the factors that would need to be considered in deciding whether to order a stay of the proceedings. It was determined that a child should be made a party to the proceedings where an asylum claim had been made by or on behalf of the child and, finally, the court set out the steps that should be taken to appraise the SSHD of the application under the 1980 Hague Convention and any material used in that application.

The mother appealed to the Supreme Court and the matter is to be heard next week to consider the following issues:

  1. Does a child named as a dependent on a parent’s asylum application have any protection from refoulement?
  2. Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement?
  3. Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?

We are once again acting for the ICFLPP and have been granted permission to intervene by way of both written and oral submissions.

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