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

The court considered the interplay between obligations of the state under the 1980 Hague Convention and under immigration law including the 1951 Geneva Convention.

The appeal court considered the state's obligations in respect to child abduction under the 1980 Hague Convention and immigration law under the 1951 Geneva Convention and related European Directives. Specifically, the matter concerned the tension in attempting to promptly return a child (who has been wrongfully removed or retained) to their home jurisdiction whilst avoiding expelling or returning a refugee to a country where they may face persecution.

The mother had removed the child, G, to the United Kingdom from South Africa. The father applied under the Hague Convention for G's immediate return. The mother claimed asylum on the basis that, as a lesbian, she had received threats from her family. The Secretary of State for the Home Department (SoS) erroneously believed G had also applied for asylum. Lieven J then stayed the father's application pending a determination by the SoS of asylum claims by the mother and, as understood by the court at the time, G.

The father appealed the order staying his application. The SoS then confirmed that the mother had applied for asylum with G as her dependent, but G had not made such an application on her own behalf. The Court of Appeal addressed five main issues [24]:

"Issue 1: 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?

Issue 2
: 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?

Issue 3: 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?

Issue 4
: What part, if any, should the child play in the application?

Issue 5
: 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?"

As to the first issue, the court defined and analysed four categories of case based upon the status/position of the child to determine whether a bar to return the child existed. On issue 2, the court concluded that any bar applied only to implementation and not to determining or making a return order. In respect to issue 3, the court set out guidelines on determining or staying an application [161].  Regarding issue 4, the court held that the child should be joined as a party to the Hague Convention proceedings. Finally, the court provided guidelines in respect to issue 5 and the steps to be taken by the court in informing the SoS of the Hague Convention application [166].

The father's appeal was allowed as, "the judge 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]

Summary by Dr Sara Hunton, barrister Field Court Chambers

Read the full judgemtn of  G (A Child : Child Abduction) [2020] EWCA Civ 1185 on BAILII