No return during pending asylum application
G v G (2021) UKSC 9, The Supreme Court of the United Kingdom
19 March 20221, HC/E/UKe 1509
The mother and father live together in South Africa. The child was born in 2012 and had always been habitually resident in South Africa. In 2014 the parents separated. Since the divorce, the child lived with the mother, but had regular contact with the father. In 2020 the mother wrongfully removed the child and took her to England. In England she applied for asylum on the basis of her fear or persecution by her family. She listed the child as a dependant on her asylum application. The child did not make an asylum application in her own right. The father made an application for return under the 1980 Hague Convention.
Grave Risk defence
The mother says she is a lesbian. She claims that after seperating from the father and coming out as a lesbian, her family subjected her to deaht threats and violence. The mother argued that there was a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The court refused to order the return of the child until the mother’s asylum application had been determined.
The High Court
The High Court decided that a child named as a dependant on the parent’s asylum application, should be treated as an applicant. An applicant has protection from refoulement pending the determination of their asylum application, so that until the request for international protection is determined by the Secretary of State a return order in the 1980 Hague Convention proceedings cannot be implemented. The two Conventions are not independent of each other but rather must operate hand in hand.
There cannot be an effective remedy under an in-country appeal process if in the meantime a child has in fact been returned under the 1980 Hague Convention to the country from which they have sought refuge. Accordingly, an in-country appeal acts as a bar to the implementation of a return order in 1980 Hague Convention proceedings. Due to the time taken for in-country appeals this could have a devastating impact on 1980 Hague Convention proceedings. The court recommended that a legislative solution be made for this problem.
An out-of-country appeal would not act as a bar to the implementation of a return order in 1980 Hague Convention proceedings.
The High Court also refused to order the return of the child.
The High Court also indicated that there is no impediment to the High Court, in considering whether a defence under article 13(1)(b) of the 1980 Hague Convention is made out, to making factual findings in relation to the constituent elements of the risk of refoulement.
In England, in order to protect the child the court orders that no one shall publish or reveal the name or address of the child who is the subject of the proceedings or publish or reveal any information which would be likely to lead to the identification of the child or of any member of her family in connection with these proceedings. In a case like this, this seems to be an important decision.
Read more about International Child Abduction