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Re H (Child) [2016] EWCA Civ 988

Judgment considering how the family courts should approach cases in which asylum is a feature.

These two appeals concern A (age 10). The first appeal was brought by A's mother, in relation to a decision of HHJ Bromilow in February 2016, and the second by A, in relation to the order of HHJ Finnerty made in July 2015. 

Background
The proceedings in relation to A began when the mother failed to return to Saudi Arabia, where the family had been living, following a visit to this country with A in August 2014. In March 2015, relying on the inherent jurisdiction of the High Court, the father made an application for A to be made a ward of court and for his 'summary return to Pakistan'. A had not lived in Pakistan since May 2012 when he and the mother joined the father who had gone to work in Saudi Arabia. By the time of the father's application A's visa for Saudi Arabia had expired and he could not be returned there. At no stage was A joined as a party to the wardship proceedings, nor was he represented.

Judge Finnerty presided at the final hearing on 8 July 2015. The mother's intention had been to argue that the court did not have jurisdiction to order the return of A to Pakistan in the light of the fact that she had made asylum claims on behalf of herself and A which were still pending. After hearing evidence from the CAFCASS officer, Judge Finnerty approved a consent order ('the July order') providing for the mother and A to return to Pakistan. The agreement was to be bolstered by various undertakings given by each of the parents, said to be for the purpose of facilitating the return of the child to Pakistan and to secure his welfare until such time as the courts of Pakistan exercised any relevant jurisdiction. The mother's undertakings included an agreement to withdraw her own and A's claims for asylum.

Ultimately, the mother did not withdraw the asylum claims, nor did she return to Pakistan with A. On 6 August 2015, the father made a without notice application to Mr Justice Roderic Wood. Although no formal application for enforcement was ever filed on the father's behalf, the proceedings were dealt with as an enforcement application. Shortly after the mother filed an application for the July order to 'be set aside or varied because … she did not consent to the terms upon which it was made.' The mother attached a statement setting out that she feared persecution if she were to return to Pakistan.

Amidst various difficulties with the respective applications prior to trial, on 27 October 2015 the mother and A were each granted asylum, the fact of which the mother relied upon this as a change of circumstances which she invited the court to hold justified setting aside the July 2015 order.

At a four-day hearing HHJ Bromilow dismissed the mother's application, rejecting the mother's allegation that her legal team had coerced her into agreeing to the July order and finding that there had been no material change in circumstances. The father's application for enforcement was granted. It was ordered that A be returned to Lahore forthwith, and in any event on or before 5 April 2016, accompanied by mother ('the February order').

Issues on appeal
The issues for determination were:

(a) Whether A's interests required him to be joined as a party in his own right at any stage in the proceedings in the High Court;

(b) Whether Judge Finnerty was wrong to make the consent order in July 2015;

(c) Whether Judge Bromilow's decision to enforce the July 2015 order rather than setting it aside or varying it was wrong.

The father, by his respondent's notice, sought to uphold Judge Bromilow's order on additional grounds but also to advance two grounds of appeal of his own. Permission was not granted for these grounds of appeal to be pursued; the Court was not persuaded as to their merit. (paras9-15).

Asylum
Asylum was granted to both the mother and A on 27 October 2015. The claims concluded as follows:

"…it is accepted that the claimant has a well-founded fear of persecution for a convention reason due to her being a member of a particular social group. It is considered that there is a reasonable degree of likelihood that the claimant would be at risk on return and that there would be a real risk of her and/or her son being subjected to serious harm contrary to Article 3 of the ECHR." (para 17)

Judge Finnerty did not address the question of A's pending asylum claim at all as she was prepared to accept the order agreed by the parents, which included the mother's undertaking to withdraw her own and A's asylum claims. Judge Bromilow explained that he was not persuaded that the grant of asylum to A meant that the July order should be set aside. (para 20)

The Court of Appeal took the view that it is tolerably clear that A was at real risk of serious harm contrary to Article 3 ECHR if he returned to Pakistan and that that risk flowed from the father.

Posing the question, 'how should the family courts approach cases in which asylum features', the Court of Appeal considered the 1951 Convention relating to the Status of Refugees, including the protection of Article 33, namely that the refugee is not to be returned to a country where his or her life or freedom would be threatened and also considered Re S (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843 and Re H (Child Abduction: Mother's Asylum) [2003] EWHC 1820 (Fam).

The mother and A argued that the family court could not order A's return to Pakistan because of his refugee status; the father argued that Re S and Re H establish that a grant of asylum does not prevent a family judge from making a return order if that is an appropriate order in welfare terms.

Conclusion on appeal
Both appeals were granted with the July and February orders being set aside.

Lady Justice Black found that 'there was insufficient attention given, both in July 2015 and in February 2016, to the question of A's asylum claim/refugee status.'  Expressing the view that the issue of how the family court should approach an application for an order for the return of a child to a country from which he is, or may be accepted to be, a refugee is a very difficult one, her Ladyship noted that 'there is no authority at all on how the court should approach the situation where it is the child himself who has refugee status and a considerable number of questions arise in this connection.'

Lady Justice Black was satisfied that the approach Judge Bromilow took to the matter simply failed to address the real issues that had to be determined and that Re H was not an answer to the question of whether he could/should order A's return in the face of his refugee status. Further it was found that in confining himself to a consideration of whether circumstances had changed, rather than considering A's welfare, Judge Bromilow was also wrong. The mother's application was an application in wardship for a variation of the return order to which she had agreed in July 2015, therefore A's welfare was the governing consideration, as in all wardship applications.

Lady Justice Black, recognising that it may be thought unhelpful to return the case to a Family Division judge without providing comprehensive guidance as to how the question of A's refugee status should be approached, and recognising that it would be advisable for the Court to receive submissions on behalf of the Secretary of State for the Home Department, gave the indicatory guidance – see para 39.

The Court of Appeal also concluded that 'matters went wrong also at the earlier stage of the hearing before Judge Finnerty.' (para 40) Lady Justice Black found that Judge Finnerty should have adjourned the proceedings for A to be separately represented in order to ensure that A's interests were being properly protected. Further, in view of the fact that A had been granted asylum by the time of the hearing before Judge Bromilow, which added a layer of complexity to the case, the Court of Appeal had no doubt at all that provision should have been made for A to be separately represented at that hearing too.

The Court noted that if the father is pursuing a return of the child to Pakistan, there must be a complete fresh start for the proceedings before a full time High Court Judge (preferably with experience of immigration and asylum work in the Administrative Court), with A being a party to the proceedings. Recognising that the mother and A's response to the father's renewed application for a return order will be that their refugee status is an obstacle to a return order, which the father will challenge, the scene will be set for the debate as to the correct procedure to resolve the refugee issue, leading to directions by the judge about that and about the return application generally.

Summary by Emily Ward, barrister, Broadway House Chambers
_________________________________________


Neutral Citation Number: [2016] EWCA Civ 988
Case No: B4/2016/1104

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
HIS HONOUR JUDGE BROMILOW (Sitting as a Judge of the High Court)
FD15P00103


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/10/2016


Before :

LORD JUSTICE MOORE-BICK
Vice-President of the Court of Appeal Civil Division
LORD JUSTICE LONGMORE

and
LADY JUSTICE BLACK

Re: H (child)

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Mr Henry Setright QC & Mr Brian Jubb (instructed by Maya Solicitors) for the Appellant
Mr David Williams QC
& Ms Jacqueline Renton (instructed by Freemans Solicitors) for the 2nd Appellant
Mr Aidan Vine QC
& Mr Edward Bennett (instructed by Dawson Cornwell) for the Respondent

Hearing date: 13th July 2016

Approved Judgment

Lady Justice Black: 
1. These two appeals concern A. He is 10 years old. Until very recently, there was one appeal, brought by his mother ("the mother") against the order made by His Honour Judge Bromilow, sitting as a deputy High Court judge, on 26 February 2016. On 6 July 2016, I joined A as a party to the mother's appeal and also granted him permission to appeal in his own right against various other orders, including the order made by Her Honour Judge Finnerty, sitting as a deputy High Court judge, on 8 July 2015. The other party to the proceedings is A's father ("the father").

An outline of the proceedings

2. The proceedings in relation to A began when the mother failed to return to Saudi Arabia, where the family had been living, following a visit to this country with A in August 2014. In March 2015, relying on the inherent jurisdiction of the High Court, the father made an application in the High Court for A to be made a ward of court and for his "summary return to Pakistan" to be ordered. Although A had lived in Pakistan in the past, he had not done so since May 2012 when he and the mother joined the father who had gone to work in Saudi Arabia. This was not, therefore, an application for summary return in the conventional sense, that is to say to the country where the child had been living before he was wrongfully taken/kept abroad. The father was seeking a speedy return of the child but, since A's visa for Saudi Arabia had expired and he could not be returned there, the application was for him to go to Pakistan. This feature needs to be kept in mind although I will refer to the father's application hereafter as an application for summary return.

3. At no stage was A joined as a party to the wardship proceedings, nor was he represented. This is one of his grounds of complaint in his own appeal and it is one of the mother's grounds of appeal in relation to the order of Judge Bromilow.

4. After various preliminary hearings, the case came before Judge Finnerty for the final hearing on 8 July 2015. A was then, as he has been throughout, a ward of court. The mother's intention had been to argue at this hearing that the court did not have jurisdiction to order the return of A to Pakistan in the light of the fact that she had made asylum claims on behalf of herself and A which were still pending. On the day, she attended with her counsel and solicitor. In the morning, evidence was heard from the CAFCASS officer, Mr McGavin, who had interviewed A. There were then negotiations between the parties. These resulted in the court being informed that the mother had agreed that A would return to Pakistan, accompanied by her. This agreement was to be bolstered by undertakings given by each of the parents, said to be for the purpose of facilitating the return of the child to Pakistan and to secure his welfare until such time as the courts of Pakistan exercised any relevant jurisdiction. On the father's part, they included an undertaking not to remove A from the mother's care save for agreed contact or as ordered by the courts of Pakistan, an undertaking not to assault, harass, pester or contact the mother, and undertakings to make payments to cover accommodation and maintenance costs for A and to institute proceedings about A's welfare in Pakistan immediately upon the child's return to Pakistan. The mother's undertakings included undertakings designed to ensure that she would live in Lahore with A. Importantly, she also undertook to withdraw her own and A's claims for asylum by a certain time on 17 July 2015. Judge Finnerty made an order ("the July order") reflecting the parties' agreement, providing for A to be returned on or before 5 August 2015. The parties' undertakings were recorded in the order.  

5. The mother did not withdraw the asylum claims, nor did she return to Pakistan with A. On 6 August 2015, the father took action in the form of a without notice application to Mr Justice Roderic Wood. Thereafter, everyone proceeded upon the basis that the father was applying for the July order to be enforced, although no formal application was ever filed on his behalf. Within a week, the mother had filed an application for an order that Judge Finnerty's order "be set aside or varied because … she did not consent to the terms upon which it was made" (Application notice B54). In the box on the form in which the applicant is required to set out the information on which he or she relies, there was included a statement that the mother feared persecution if she were to return to Pakistan.

6. The mother's and father's applications ran into various difficulties and took some time to come on for trial. In the intervening period, there were a number of hearings at which directions were given. A significant development took place on 27 October 2015 when the mother and A were each granted asylum. The mother relied upon this as a change of circumstances which she invited the court to hold justified setting aside the July 2015 order. A four day hearing was fixed to commence on 22 February 2016 which was to consider (according to the order of Hogg J on 29 October 2015):

"a. The mother's application to set aside the order dated 8 July on the basis of duress;

b. The mother's application to set aside the order of 8 July 2015 on the basis of a change of circumstances;

c. The father's application to enforce the terms of the order of 8 July 2015."

7. The hearing before Judge Bromilow lasted from 22 February to 26 February 2016. The mother was present in court and gave evidence, as did her sister. The father had been unable to get a visa to attend. He was constrained to participate by telephone, hearing most but not all of the proceedings. Evidence was heard from the barrister and solicitor who had represented the mother at the July 2015 hearing, refuting the mother's allegation that they had coerced her into agreeing to the July order. The judge rejected that allegation, decided that there had been no material change in circumstances, and ordered that the "mother's application to set aside the consent order … is dismissed" and that the "father's application to enforce the 8 July consent order is granted". He ordered that A be returned to Lahore forthwith, and in any event on or before 5 April 2016, accompanied by the mother.

The ambit of the appeals for which permission was granted prior to the appeal hearing

8. In very broad terms, the issues that arise for determination are:

i) Whether A's interests required him to be joined as a party in his own right at any stage in the proceedings in the High Court;

ii) Whether Judge Finnerty was wrong to make the consent order in July 2015;

iii) Whether Judge Bromilow's decision to enforce the July 2015 order rather than setting it aside or varying it was wrong.

The father's proposed appeal: Judge Bromilow should not have entertained the mother's application at all
9. By his Respondent's Notice, the father sought to uphold Judge Bromilow's order on additional grounds but also to advance two grounds of appeal of his own, namely that Judge Bromilow had, in fact, no power to entertain the mother's application to set aside the July order or, in the alternative, should not have exercised that power.

10. The argument that Judge Bromilow had no power to entertain the application involved the following propositions:

i) Section 17 of the Senior Courts Act 1981 provides:

"(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.

(3) [Not relevant]"

ii) The mother's application was for the setting aside of the return order and came within section 17(1).

iii) No relevant rules have been made in pursuance of subsection (2), therefore the mother's application had to be heard and determined by the Court of Appeal; Judge Bromilow was not entitled to hear it.

iv) Alternatively, if he was entitled to hear it, he should not have done.

11. Counsel for the father referred, in support of this argument, to the financial remedy cases of Gohil v Gohil  [2014] EWCA Civ 274, [2014] 3 WLR 717 (Court of Appeal) and [2015] UKSC 61, [2015] 3 WLR 1085 (Supreme Court) and Sharland v Sharland [2015] UKSC 60, [2015] 3 WLR 1070. They also relied on cases in the child abduction field, namely Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89 and Re M (Abduction: Undertakings) [1995] 1 FLR 1021. Dealing with Re C (A child)(Practice: Setting Aside Consent Order in Abduction Proceedings) [2013] EWCA Civ 204, [2013] 2 FLR 1300 and In re F (A Child)(Return Order: Power to Revoke) [2014] EWHC (Fam) 1780, [2014] 1 WLR 4375, upon which Judge Bromilow had relied in deciding that he was entitled to deal with application, they submitted, amongst other things, that in these cases section 17 of the Senior Courts Act 1981 had not been cited.

12. I would not give permission for the father's grounds of appeal to be pursued. For reasons which I will set out below, I would allow the child's appeal in relation to the July order and set it aside. If my Lords agree with that course, there will have to be a fresh start for the proceedings in any event and the question of whether a judge, in the position of Judge Bromilow, could entertain an application such as the mother's would not require determination. This appeal gives rise to other issues which are of significant difficulty and it is undesirable, in my view, that attention should be diverted from those issues in order to arrive at a definitive determination of a dispute without practical consequences.

13. In any event, I am not persuaded as to the merits of the father's arguments which, it seems to me, fail to recognise what Judge Bromilow's role really was at this stage in the proceedings. By the time that the mother's application reached Judge Bromilow, it was characterised as an application to set aside the July consent order. It is perhaps not surprising that this characterisation generated arguments about whether a first instance judge is entitled subsequently to revisit his own decision or that of another judge of the same level, and as to the technicalities that might attend an application to set aside in the High Court. However, an unfortunate consequence of this focus upon technicalities appears to have been that the true nature of the court's task was obscured. Judge Finnerty's order was made in the context of wardship, and A's best interests were therefore the determining consideration on that day. To use the terminology adopted by Mr Williams QC (who with Ms Jacqueline Renton represented A in the appeal) in his oral submissions, it was a welfare order. The parents' cross-applications which ultimately came on for trial before Judge Bromilow were also made within the wardship proceedings. The situation was not, therefore, the same as that in proceedings under the 1980 Hague Convention, and authorities dealing with such proceedings (as does Re M (Abduction: Undertakings)) are not of assistance. Equally, reliance on Re M (Abduction: Non-Convention Country) may not be helpful either because, although this was not a Hague Convention case, the court still applied Hague Convention principles. That would not happen now as, in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 [2005] 2 FLR 802, the House of Lords held that the outcome must be dictated by the welfare of the child and that the specialist rules and concepts of the Hague Convention should not be applied by analogy in non-Convention cases.

14. Once the return order in relation to A is seen as a product of the court's normal welfare jurisdiction in wardship, it seems to me that it should be evident that if the child's welfare so required, the court could revisit it. The idea that it would not be able to do so at all (because only the Court of Appeal could handle the matter), or not be able to do so unless strict criteria for setting aside an order were satisfied, runs counter to the purpose of wardship, which is designed to respond flexibly to the best interests of the child at any given time.

15. Although counsel for the father (Mr Vine QC, who did not appear below, and Mr Bennett, who appeared in front of Judge Bromilow) seemed in writing to be advancing the case that Judge Bromilow simply had no jurisdiction to set aside the return order, after discussion during the appeal hearing, it became apparent that the argument was, in fact, more one of form than of substance. Mr Vine conceded that if the mother had made an application for variation of the July order, he could not have submitted that the court was not entitled to deal with it. His argument was based upon that not having been the form of her application. In fact, however, the mother did seek a variation of the return order (see the extract from her application form at paragraph 4 above), albeit that she confined the basis upon which this variation was sought. Furthermore, Judge Bromilow would have been entitled to vary the order of his own motion if A's best interests required it. Proceedings under the inherent jurisdiction of the High Court in relation to children are "family proceedings" (section 8(3)(a) of the Children Act 1989) and, in family proceedings, the court can make a section 8 Children Act order even if no application has been made (section 10(1)(b) ibid). And if there is any question as to whether the order sought by the mother amounted to a section 8 order, the judge was, in my view, entitled to act of his own motion in relation to his ward's best interests. Whether it is appropriate, in the exercise of these powers, to do anything other than enforce the original consent order will, of course, always depend upon the circumstances of the individual case. For example, if a party were to return to court the day after the order, unable to point to any significant changes that had taken place, he or she could not normally expect to succeed in displacing the previous day's order, and could anticipate his or her application being dispatched in very short order. But the reason why a subsequent application such as this will have foundered immediately is because that is what is required in the best interests of the child, and not because the court had no jurisdiction to entertain it.

Asylum: the factual position

16. The asylum claims made by the mother and A are of central importance in this case and accordingly it is necessary to look at the position in a little detail and to do so at an early stage in this judgment. The mother claimed asylum on 15 September 2014 and A's claim in his own right was initiated at the end of June 2015. Both claims were pending when the matter came before Judge Finnerty in July 2015. Asylum was ultimately granted to both the mother and A on 27 October 2015.

17. The Asylum Grant Minute dated 27 October 2015, prepared by the Home Office in relation to the mother's claim, shows that the decision maker was persuaded that the mother had given a credible and consistent account of ill treatment by the father, and accepted that the mother and A had suffered domestic violence at his hands. Relevant to the determination was also that the mother would be a divorced woman and single mother upon her return to Pakistan. In the section entitled "Risk on Return", reference is made to the possibility that the mother and A may be separated upon return to Pakistan and to particular concern regarding what were said to be the father's wishes for his son to fight in Syria. The observation is also made that "gender based violence against women remains a serious problem" in Pakistan, and that "[e]ffective state protection is, in general, unlikely to be available for women fearing gender based violence".  Relocation within Pakistan was not considered viable as a solution and nor was it considered that there would be sufficient protection available in Pakistan for the mother. The section concludes:

"In the light of the above, it is accepted that the claimant has a well-founded fear of persecution for a convention reason due to her being a member of a particular social group. It is considered that there is a reasonable degree of likelihood that the claimant would be at risk on return and that there would be a real risk of her and/or her son being subjected to serious harm contrary to Article 3 of the ECHR."

18. As to A, the documentation in relation to his separate claim is sparse. It appears that A's claim was probably, strictly speaking, for humanitarian relief rather than for asylum as such (because the reasons for his claim do not engage the government's obligations under the 1951 Refugee Convention, see further below at paragraph 22). However, under the Immigration Rules, a person comes within the definition of "asylum applicant" even if he or she is seeking international protection otherwise than as a refugee. No doubt this explains why the letter to A on 27 October 2015 spoke in terms of him having been granted asylum. In the circumstances, I will use the same terminology in this judgment. As to the basis for extending protection to him, it is tolerably clear from the extract from the mother's Asylum Grant Minute that I have quoted above that, at root, there was an acceptance that he was at real risk of serious harm contrary to Article 3 ECHR if he returned to Pakistan and that that risk flowed from the father.

Asylum: treatment by Judge Finnerty and Judge Bromilow

19. Judge Finnerty did not address the question of A's pending asylum claim at all as she was prepared to accept the order agreed by the parents, which included the mother's undertaking to withdraw her own and A's asylum claims.

20. Judge Bromilow dealt with the matter in the two concluding paragraphs of his judgment, the bulk of which had been concerned with the mother's claim that she had been forced by duress on the part of her then counsel and solicitor to enter into the agreement which became the July order. He explained that he was not persuaded that the grant of asylum to A meant that the July order should be set aside. I will set out his reasoning in full:

"36. …. A's claim [for asylum] was made on 26 [sic] June 2015. All parties knew about this on 8 July 2015. It was actively considered during the course of discussions and the prospect of an adjournment was considered. The court heard oral evidence from the High Court CAFCASS officer about A. I have taken account of the decision of Mr Justice Wilson (as he then was) in the case of Re H [2003]. In that case, the mother's asylum status was under consideration as opposed to that of her eight year old son. In my judgment, the grant of asylum to A is not a reason for setting aside the order. Accordingly, the second limb of Mrs Khan's application to set aside the order of 8 July 2015 fails.

37. Mr Jubb addressed me about A's welfare. He was right to do so. Indeed, I have been keen to learn much more about A. It has not been my task to investigate what is best for him in terms of welfare as measured by reference to s. 1(3) of the Children Act 1989. However, I observe that, notwithstanding the allegations made by these parents and the state of the father's relationship with his son, these educated parents with specialist legal advice reached an agreement about their son on 8 July 2015. More than seven months have now elapsed. That is a significant period of time in this child's life. The best people to provide for a child's welfare are his parents. I urge them to do so promptly. The order of 8 July 2015 stands and it must be enforced by way of a prompt return to Pakistan…."

Asylum and welfare: discussion
21. How should the family courts approach cases in which asylum features? Two authorities were cited to us on this point, namely Re S (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843, [2002] 2 FLR 465 (Re S) and Re H (Child Abduction: Mother's Asylum) [2003] EWHC 1820 (Fam), [2003] 2 FLR 1105 (Re H). Whereas it was submitted on behalf of both the mother and A that the family court could not order A's return to Pakistan because of his refugee status, Mr Vine argued on behalf of the father that Re S and Re H establish that a grant of asylum does not prevent a family judge from making a return order if that is an appropriate order in welfare terms.

22. Any consideration of the implications of asylum for a family court's decision making must commence with a basic understanding of what is involved. As the fine detail is immaterial for present purposes, what follows is a broad description only. At the heart of the matter is the 1951 Convention relating to the Status of Refugees, as later expanded. This establishes that a refugee is a person who is outside his or her country of nationality or habitual residence, has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion, and is unable or unwilling to avail him or herself of the protection of that country, or to return there, for fear of persecution. A refugee is not to be returned to a country where his or her life or freedom would be threatened. Article 33 of the 1951 Convention contains this protection. 

23. Where someone does not meet the definition of refugee but is still in need of international protection, he or she can be given humanitarian protection. As I said earlier, this may, in fact, be the form of protection that is relevant in A's case, as strictly speaking he may not come within the categories of those covered by the 1951 Convention.

24. Protecting refugees is the responsibility of the state. In the UK, the Home Office determines whether a particular individual is a refugee. If so, the person will be granted leave to remain in the UK for a period of time, in the present case five years.

25. In approaching an asylum/humanitarian protection claim, the Home Office looks to see whether the person concerned has a well-founded fear of persecution or is at real risk of serious harm for a non-Convention reason. The approach to risk is not the same as that taken in a family case. In a family case, establishing risk is a two-stage process. First, the court considers what facts are established on the balance of probabilities; then it proceeds to consider whether those facts give rise to a risk of harm, see Re J (Children) [2013] UKSC 9. In contrast, in an asylum/humanitarian protection claim, the material presented by the claimant is looked at as a whole with a view to determining whether there is a well-founded fear of persecution or substantial grounds for believing that a person would face a real risk of serious harm, a reasonable degree of likelihood of serious harm being what is required. There is no comparable process of searching for facts which are established on the balance of probabilities.

26. A person's refugee status/entitlement to humanitarian protection may not be permanent. Changes in the situation in the person's own country may render it no longer necessary, for example, but there are other circumstances in which it can be revoked, including where it has been obtained by misrepresentation of facts. 

27. Against this background, I return to Re S  and Re H.

28. In Re S, a mother and two children came to England from India for a holiday. She decided not to return and claimed asylum, naming the children as dependants, claiming that she feared persecution from the father and would be unable to survive in India as a single woman. Her asylum application was refused but she was given exceptional leave to remain in the UK for four years.  She appealed. During the currency of her asylum appeal, the father obtained an order from the family court for the immediate return of the children to India and the mother appealed against that as well. It was argued that section 15 of the Immigration and Asylum Act 1999, which provided that a person may not be removed from or required to leave the UK between the making of an asylum claim and the Secretary of State giving notice of the decision on it, prohibited the removal of the children to India pursuant to the judge's order. Laws LJ, with whom the other two members of the court agreed, held that the provisions of section 15 were directed to the immigration authorities acting under the Secretary of State for the Home Department and did not circumscribe the duty and discretion of a judge exercising the wardship jurisdiction (paragraph 21). That determined the appeal, although Laws LJ also pointed out that the protection afforded by section 15 had in any event ended when the Secretary of State gave notice to the mother of his decision on her claim. He considered that the question of how far the family court, acting under the 1980 Hague Convention or in wardship, is obliged to take into account or comply with Article 33 of the 1951 Convention, seen as a freestanding instrument, was not before the court and declined to determine "the scope and the context of the incorporation of the 1951 Convention into our municipal law", which he considered an issue "not without some sophistication" (paragraph 25). He went only so far as to say:

"Having regard to the rule as to the paramountcy of the child's interests under s 1 of the Children Act 1989, I would respectfully suppose that a family judge would at the least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected."

29. Laws LJ also pointed out that the children were not applicants for asylum themselves but dependants on a parent who had applied for asylum (paragraph 27). This highlights one of the differences between Re S and the present case, in which A himself was an asylum claimant at the time of the July 2015 hearing and had been recognised as a refugee by the time of the hearing before Judge Bromilow, on the basis of risk to him from the father in Pakistan. It might be thought that another significant difference was that the mother in Re S had not got asylum at the time of the hearing in wardship whereas, by the time of the hearing before Judge Bromilow, the mother in this case had. However, in Re H, to which I now come, Wilson J, as he then was, thought that it would be wrong to distinguish between a person who may in fact be a refugee and may still be able to establish that (as the mother in Re S might through her asylum appeal) and a person who has already established their refugee status.

30. In Re H, the mother had fled to London from Pakistan, alleging domestic violence by the father, which the father denied. The father brought their child over to England shortly afterwards on a temporary basis and the mother took over his care, contrary to the father's wishes. The father applied for the summary return of the child to Pakistan. By the time the father's application was heard, the mother had been granted asylum on the grounds of the father's violence and the inability of women in her position to secure effective protection in the courts in Pakistan. No asylum claim had been made for the child in his own right; he was a dependant in the mother's application. Wilson J was not faced with any issue over the applicability of Article 33 in domestic law because it was agreed between the parties that for practical purposes the relevant articles of the Refugee Convention had been incorporated into our law (see paragraphs 7 and 43 of Wilson J's judgment). The argument advanced on behalf of the mother was not that, in the light of Article 33, the court could not make a return order in relation to the child, it being conceded that, strictly speaking, the court would not thereby be expelling or returning the mother to Pakistan. Wilson J was instead invited to keep at the forefront of his mind in his enquiry into the child's welfare that an order returning him would be tantamount to enforcing the mother's return, contrary to rights which flowed from her refugee status, and to give the grant of asylum substantial weight. Wilson J decided upon the following approach:

"43. … In the event I propose to pay significant regard to the decision of the Secretary of State that the mother has a well-founded fear of persecution in Pakistan; for I take the view that it would be unrealistic for me to divorce the mother's situation in Pakistan from that of [the child].  Nevertheless more relevant than the grant of asylum to the mother is the material presented by her which underlies it: I must look independently at it; note both that it is largely disputed and that I cannot resolve the dispute; and consider the probable efficacy of the raft of protection which is now volunteered."  

31. He then went on to conduct a balancing exercise considering the factors relevant to whether it was in the child's best interests to be ordered to return to Pakistan, the fact that the mother had asylum in the UK being one of them. Wilson J did not make any factual findings about the violence alleged by the mother. Relying, amongst other things, on a set of protective undertakings offered by the father to the English court and (paragraph 50) "also to be carried into the courts of Pakistan", he ordered the child's return (paragraph 51).   

32. I would not accept Mr Vine's argument that Re S and Re H give the green light to a return order in the present case. Neither Re S nor Re H decided that the grant of asylum to a child is no bar to an order in the family court requiring the return of that child to the country from which he has been granted refuge. The children in those cases had not been granted asylum themselves. It was their mothers who claimed to be/had been accepted to be at risk of persecution and in each case the child was a dependant on the mother's claim. Mr Vine argued that this was not a material difference. He relied upon two paragraphs from Laws LJ's judgment in Re S as support for this submission. These paragraphs refer to two situations in which dependants will be permitted to stay in the UK. The first is where the principal asylum claimant has been granted asylum and the dependant is therefore granted leave to remain for the same duration. The second is where the asylum seeker has an appeal pending in relation to his claim and the dependant is not removed pending determination of the appeal. Of the latter case, Laws LJ said that the practice "would no doubt be protected by the courts either under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or as a matter of legitimate expectation or both." This does not, however, carry Mr Vine as far as he would wish. I cannot accept that the position of a dependant who is permitted to stay in this country by virtue of his or her relationship with, say, a parent who is claiming or has been granted asylum can be equated with that of a child who has been granted asylum on the basis that he or she personally is at risk of treatment contrary to Article 3 ECHR if returned to a particular country.

33. In case Re S and Re H be found not to be a complete answer, Mr Vine defended the making and enforcement of the return order on other grounds as well. He argued that Article 33 was not engaged as the context was not a decision whether to grant asylum but family litigation, and furthermore, he said, Article 33 applies only to contracting states and this was a dispute between private individuals. A judicial determination in a private family law dispute is not, he submitted, within the scope of Article 33. The other parties did not accept these propositions.

34. Mr Williams for A observed that the situation within the EU is governed by Article 19 of the EU Charter (which provides that no one may be removed to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment) and EC Directive 2011/95/EU ("the Qualification Directive"). Article 21 of the Qualification Directive requires Member States to respect the principle of non-refoulement in accordance with their international obligations. Mr Williams' submission was that an order requiring the return of A to Pakistan, enforced by the Tipstaff if necessary, would amount to the state removing A in breach of this requirement. He submitted that Judge Bromilow misled himself by relying on Re H as establishing that the grant of asylum to A was not an obstacle to A's return to Pakistan. In his submission, A's refugee status was binding on Judge Bromilow and meant that he could not order A's return to Pakistan; only the revocation by the Secretary of State of the grant of refugee status could open the door to that. If that absolute position was wrong, his submission was that at a bare minimum the refugee status represented a very serious obstacle to the making of a return order, relevant to the question of what was in A's best interests. It followed, he said, that Judge Bromilow should have discharged the July order.

35. Mr Setright QC (who did not appear below) and Mr Jubb (who appeared in front of Judge Bromilow but not Judge Finnerty), representing the mother, and with a primary focus, of course, on Judge Bromilow's order against which the mother had appealed, also submitted that Re S and Re H were to be distinguished. They too argued that, in the light of A's refugee status, an order of the family court returning A to Pakistan would amount to a breach of this country's international obligations. They argued that the court has no jurisdiction to direct the return of a child who has asylum or, in the alternative, that if there is jurisdiction, it should be exercised sparingly and after proper evaluation of the child's welfare, with the child as a party to the proceedings. However, they also made the pragmatic submission that it was not necessary to delve too deeply into the technicalities of the asylum question because it was clear that Judge Bromilow simply had not carried out sufficient investigation into the implications of A's refugee status or given any weight to it at all. It was submitted that, for this reason as well as others, the appeal would have to be allowed, and if the matter were to be remitted for rehearing, the technicalities could be explored further at that stage. This would include a further question relating to asylum upon which there was no unanimity, namely how a family court could/should proceed where asylum has been granted but there is a challenge to the basis of it, as in this case where the father denied the mother's and A's allegations about his conduct.

36. In my view, there was insufficient attention given, both in July 2015 and in February 2016, to the question of A's asylum claim/refugee status. The issue of how the family court should approach an application for an order for the return of a child to a country from which he is, or may be accepted to be, a refugee is a very difficult one. There is no authority at all on how the court should approach the situation where it is the child himself who has refugee status and a considerable number of questions arise in this connection. For my part, I am satisfied that the approach that Judge Bromilow took to the matter simply failed to address the real issues that had to be determined. Re H was not an answer to the question of whether he could/should order A's return in the face of his refugee status. In placing the reliance that he did upon it, Judge Bromilow failed to address the implications of the status. Furthermore, in so far as he confined himself to a consideration of whether circumstances had changed, rather than considering A's welfare, he was also wrong, in my view. As I have already mentioned in connection with the father's proposed appeal, the proper characterisation of the mother's application was that it was an application in wardship for a variation of the return order to which she had agreed in July 2015. A's welfare was therefore the governing consideration, as in all wardship applications. Mr Vine valiantly attempted to persuade us that Judge Bromilow did in fact consider A's welfare, including his refugee status, sufficiently albeit shortly and reached a proper conclusion, taking everything into account, including a feature of particular importance in this case, namely parental agreement. Welfare can be approached summarily in an appropriate case, he submitted, relying on Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802. There was, however, little to which Mr Vine could point in Judge Bromilow's judgment to demonstrate that he had addressed A's welfare in reaching his decision that the July order must be enforced by a prompt return of A to Pakistan. Mr Vine relied upon paragraphs 36 and 37 of the judgment (see above) but to my mind they do not demonstrate this. At best, Judge Bromilow there touched on the question of welfare extraordinarily briefly. However, I think it is probably more likely that what he was indicating in those paragraphs of his judgment was that he was under the impression that welfare was not the guiding consideration in the proceedings before him.

37. It seems to me that the combined effect of assuming without more that A's refugee status was no bar to a return and concentrating on whether there had been a change of circumstances which justified setting aside the July order rather than looking at A's welfare was to divert Judge Bromilow from considering the implications of the fact that the Secretary of State had accepted that A would be at risk of treatment contrary to Article 3 at the hands of his father if returned to Pakistan. At the very least, it was a factor that required to be weighed carefully in the balance in determining whether it was in A's best interests for the return order to be set aside. But, depending on the correct legal approach to refugee status in these circumstances, it might have represented a more complete bar to A's return.

38. The consequence of the omission of Judge Bromilow to deal with the refugee issue and to consider A's welfare is, in my view, that his order has to be overturned, although as it happens, this is only one of a number of reasons why the matter will have to be reheard at first instance. I recognise that it may be thought unhelpful to return the case to a Family Division judge without providing comprehensive guidance as to how the question of A's refugee status should be approached. However, I think it would be wrong to offer any definitive views about this at this stage. It is a very difficult question and the court will require as much help as it can possibly get, not only from the family law angle but also in relation to immigration and asylum law and practice. The last minute joinder of A as a party meant that his counsel had not had the time that they wished to research the asylum issues comprehensively. Furthermore, it seems to me that it would be advisable for the court to receive submissions on behalf of the Secretary of State for the Home Department on the subject and to this end, consideration should be given to joining the Secretary of State as a party if and when the father's return application is reheard. Indeed, the Secretary of State herself may well welcome the chance to make submissions to the family court, since the decisions that fall to be made could have significant implications for the practice of her department. Nevertheless, it might help to give some indication of the possible shape of the debate and I will do so, in broad outline, in the following paragraph. I do not propose to say anything about the approach that should be taken in family cases to pending asylum claims because A's established refugee status makes that irrelevant now.

39. The starting point for a consideration of the implications of A's refugee status will have to be, in my view, that at the very least it is unlikely to be appropriate for the family court to order A's return to Pakistan without first concluding that his situation did not, in fact, justify the protection afforded by the Secretary of State. It needs to be recognised that the position may go further in that, if some of the submissions made to us are correct, it might not even be permissible for the family court to order A's return unless and until his refugee status is revoked. The questions that will need to be addressed include at least the following:

i) Is A's refugee status an absolute bar to the family court ordering his return to Pakistan?

ii) If so, by what process can the father challenge the refugee status, given that he denies the allegations of violence by the mother and A upon which their asylum claims were based? By virtue of paragraphs 338A and 339AB of the Immigration Rules, a grant of refugee status shall be revoked where the Secretary of State is satisfied that the person's misrepresentation was decisive for the grant. The question arises as to how the determination is made that there has been a misrepresentation. Normally this would be a matter for the Secretary of State alone, but where the family court needs the issue resolved in order to decide what is in a child's best interests, can the family court determine it itself? Is it necessary for the Secretary of State to be joined in the proceedings, in those circumstances, not least with the intent that the family court's determination should be binding upon her too? Is it necessary for the grant of refugee status to be formally revoked by the Secretary of State prior to a return order being made or is some lesser process sufficient?

iii) If the family court determines whether there has been a misrepresentation, on what basis does it do so? Is the usual process of making findings of fact on the balance of probabilities appropriate or is it necessary to take the sort of approach taken by the Secretary of State to the determination of asylum claims?

iv) If A's asylum status is not an absolute bar, how should it be taken into consideration in the family proceedings? Once again, the question arises as to how the court should resolve the factual debate between the parties.

v) Does it make any difference that, strictly speaking, A probably has humanitarian protection rather than protection as a refugee?

The July 2015 order
40. I said earlier that Judge Bromilow's failure to address the relevant issues in the February 2016 hearing was not the only reason why the appeals in this case would have to be allowed and the matter remitted for rehearing. It seems to me that matters went wrong also at the earlier stage of the hearing before Judge Finnerty. 

41. It is material to establish what was known to Judge Finnerty at the time of the July 2015 hearing. Included in the appeal papers are a skeleton argument on behalf of the father and a position statement on behalf of the mother, in each case from counsel who was representing the parent at that time (not the same counsel as now appear). From these and other documents available in July 2015, it is clear that:

i) A and the mother were both making allegations that the father had been violent to them;

ii) The mother's case was that her own and A's safety was threatened if they returned to Pakistan;

iii) A and the mother both had pending asylum claims.

42. The CAFCASS officer's report set out what had transpired during his interview with A on 24 June 2015. A had said that the father had been violent towards him and the mother. He exhibited very strong feelings against his father. He was found by the CAFCASS officer to be a particularly bright child, whose maturity was in line with his age if not beyond. The CAFCASS officer said that A had a clear agenda, which dominated his interview with him. His assessment was that A's agenda "had been prepared, almost certainly with his mother, in advance" and he reported that A had read court documents that his mother had shown him. He expressed the following view about what A described to him:

"30. I cannot be confident, having heard only negative things about him, that I obtained a rounded picture of his father. That said, the scenarios that A described of alleged abuse, some demonstrated physically, had the ring of authenticity about them, and if true, give good reason for his antipathy towards his father. It was notable that there was some balance in what A had to say notably his positive comments about his school in Lahore."

As for the CAFCASS officer's oral evidence to Judge Finnerty, although there is no transcript of his evidence, from the note produced by the father's representatives, he does not appear to have diverged materially from what he said in his report.

43. Judge Finnerty had no evidence about what protective measures might be put in place in Pakistan if the mother and A returned there. Of particular relevance, she had nothing to guide her as to whether the undertakings offered by the father would be effective in Pakistan to protect the mother and A, in the event that their accounts were correct and they were at risk of violence from the father. 

44. Mr Williams submitted that notwithstanding the agreement between the parents, in the light of what was known to the court, Judge Finnerty should have declined to make the consent order put before her by the parents. These were wardship proceedings, A's welfare was her paramount consideration, and she was neither obliged nor entitled simply to rely upon what the parents had decided between them. She had, in his submission, an obligation to reach her own independent conclusion as to whether what was agreed was in A's best interests or not and she should, he submitted, have given a judgment dealing with the point. Had she done this, she would have noted that there were significant features of the case which suggested that his interests would not be served by going to Pakistan. These would have included, Mr Williams said, the serious allegations made by the mother and A against the father, the pending asylum claims, A's clear views conveyed by the CAFCASS officer, the fact that A would be going to a country where he had not lived for three years and which may not have jurisdiction over him as regards his long term welfare, and the absence of any expert evidence as to whether the courts in Pakistan would accept jurisdiction over A and how they would approach issues of custody, contact, relocation, and the enforcement of the undertakings. He submitted that in the light of these issues, Judge Finnerty should have adjourned the proceedings in order that A could be separately represented and expert evidence about Pakistani law obtained.

45. Mr Vine for the father submitted that A was appropriately involved in the July 2015 hearing. He pointed out that the question of A's participation was considered by Russell J in May 2015 and she took the view that the proper course was to obtain a report from a CAFCASS officer. Through this medium, in his submission, A was properly heard at the July 2015 hearing. Mr Vine relied upon Baroness Hale's statement in In re D (A Child)(Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 that in "most cases" it should be enough that the child is interviewed by a CAFCASS officer. Amongst other authorities, he also invited our attention to In re D (Children)(Child Abduction Practice) [2016] EWHC 504 (Fam) in which the President of the Family Division, without hearing from the child concerned, permitted a father to withdraw 1980 Hague Convention proceedings on the basis that, on the particular facts of that case, they had no utility, having been overtaken by events in the Californian court.

46. As for the substantive order made by Judge Finnerty pursuant to the parents' consent, Mr Vine supported this, submitting that she rightly gave effect to the parents' joint parental decision that A and the mother should return to Pakistan and that a premium should be placed on parental agency and responsibility. He relied also upon the fact that the question of A's asylum status was aired before Judge Finnerty and the mother agreed, after lengthy negotiations, to withdraw the pending asylum applications and go to Pakistan.

47. In my view, Mr Williams is right that in the particular unusual circumstances of this case, Judge Finnerty should have adjourned the proceedings for A to be separately represented. A number of features combine to lead me to that view. They include the following:

i) The last minute nature of the mother's agreement to the father's application, notwithstanding what she had said about the risk that he posed to her and A in Pakistan;

ii) The fact that A had his own asylum claim pending and, tying in with this, the fact that he had made his own serious allegations against the father which the CAFCASS officer considered had the ring of authenticity about them;

iii) The fact that in returning to Pakistan, it appeared that the mother was depending on the undertakings offered by the father, but there was no evidence at all as to whether these would be effective in Pakistan or as to how the Pakistani courts would approach issues relating to the child's welfare once the parental dispute was put before them.

48. A was the court's ward and the judge had a duty to satisfy herself that the proposed order was in his best interests. The degree to which a judge will probe into an agreement which has been reached between parents depends very much upon the circumstances of the case. However, the circumstances of this case were such as to require particular scrutiny. 

49. I remind myself of FPR 2010 PD12J – Child Arrangements & Contact Order: Domestic Violence and Harm. The purpose of this Practice Direction is to set out what the family court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by the other party or that there is a risk of such violence or abuse (paragraph 2 ibid). It imposes obligations on the court when faced with certain consent orders to do with children. It provides, for example, that the court shall not make a child arrangements order by consent without initial safeguarding checks having been obtained and an officer of CAFCASS having spoken to the parties separately, except where the court is satisfied that there is no risk of harm to the child in making the order (paragraphs 7 and 8). 

50. Although not applicable in terms, the Practice Direction underlines the caution that needs to be exercised in approving parental agreements in the context of allegations of domestic violence. Considerable caution was similarly required, in my view, in the particular circumstances of this case. The mother having agreed to the order sought, the only effective way in which the court could be sure that A's interests were being properly protected was to join him as a party with his own representative.

51. In consequence, I would set aside the consent order made by Judge Finnerty. As I signalled much earlier in this judgment (paragraph 12), that means that, if the father is pursuing a return of the child to Pakistan, there must be a complete fresh start for the proceedings. The child will have to be a party to the proceedings. I do not intend to enter into the detail of how he is to be represented, and in particular whether or not he requires a guardian. These are matters that will have to be addressed by the judge who takes control of the case, who I think should be a full time High Court judge, in view of the difficulty of the issues arising. If the judge were to have experience of immigration and asylum work in the Administrative Court, that would be of great assistance. No doubt, the response from the mother and A to the father's renewed application for a return order will be that their refugee status, and probably particularly A's refugee status, is an obstacle to a return order, which the father will challenge. That will set the scene for the debate as to the correct procedure to resolve the refugee issue, leading to directions by the judge about that and about the return application generally.

A's participation after the July 2015 order and in particular before Judge Bromilow

52. In the light of the decisions I have already explained, it is unnecessary to deal with the arguments about whether A should have been joined as a party at any stage following the July 2015 order, and in particular, for the purposes of the hearing before Judge Bromilow. I will, however, deal briefly with the hearing before Judge Bromilow. In view of the fact that by then A had been granted asylum, which added a layer of complexity to the case, I have no doubt at all that provision should have been made for A to be separately represented at that hearing. It is to be hoped that this would have prevented the hearing being dominated by the question of whether the mother had reached the July agreement under duress, and instead have turned the focus to all the various aspects of A's welfare. The case was one of significant difficulty and A had a standpoint which was quite distinct from the mother's, both factors which FPR 2010 PD16A indicates may justify the making of an order making the child a party.  His interests in February 2016 were not dependent on the validity of the mother's agreement to the July order. Re H might (I only say might) have placed her in difficulty in relying on her refugee status in opposing a return order in relation to A, but they did not deal with A's position as a refugee which required quite separate and distinct consideration. There were also, potentially, international complications relating to the legal position in Pakistan.

Conclusion

53. I would allow both A's and the mother's appeals and set aside the orders made by Judge Finnerty in July 2015 and Judge Bromilow in February 2016. I would remit the father's application for a return order for rehearing by a Family Division judge, the first stage in that process being a prompt directions hearing at which the shape of the proceedings can be considered.

54. Counsel for the father, Mr Vine QC and Mr Bennett, appeared on the appeal pro bono, as is so often the case these days. They were instructed by Dawson Cornwell Solicitors, who also acted pro bono on the appeal. It was vital for the father to be represented and I would like to express my gratitude to them for enabling this to happen. 

Lord Justice Longmore:
55. I agree with my Lady's judgment and would particularly like to associate myself with her gratitude to Mr Vine QC and Mr Bennett for appearing probono in this difficult case.

Lord Justice Moore-Bick:

56. I agree.