Can the Family Court ignore a decision by the Home Office to grant asylum to a child by ordering the child’s return to the country where it was found he would be at risk of harm contrary to Article 3 of the ECHR ?

This was the central issue in Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988, where a father applied for the summary return of his son to Pakistan, whom he claimed had been abducted to this jurisdiction by the mother. The mother’s case was that she and her son had suffered domestic violence at the hands of the father. The mother had made an application for asylum for herself and a separate application for her son. At the final hearing in the family proceedings, a determination by the Home Office was as yet to be made, and the mother agreed by consent to return with the child to Pakistan on the basis of the father giving undertakings not to remove her from her care and not to harm her or the child in anyway, as well as provide maintenance for her living accommodation in Lahore. She also undertook to withdraw the asylum claims.

However the mother did not withdraw her asylum claims and did not return to Pakistan as per the consent order. The father applied for the order to be enforced, however the Home Secretary granted asylum for both the mother and the child, and the mother applied for the order to be set aside on the basis that she feared persecution from the father on return to Pakistan. A four day hearing took place and the family court judge dismissed mother’s application to set aside the original order.

The mother appealed and Lady Justice Black concluded that the family court had failed to properly consider either the mother’s or the child’s asylum status in any significant way. She referred to the decision letter of the Home office, which showed that the decision maker accepted that the mother had given a credible account of the domestic violence she had suffered from the father, and the decision letter went on to point out the mother’s concerns that the father wished for his son to fight in Syria, as well as highlighting country guidance that suggested gender based violence against women remains a significant problem in Pakistan, and that there is no effective state protection for women from such violence.

LJ Black considered two cases, Re S (Child Abduction:Asylum Appeal) [2002] EWCA Civ 843 and Re H (Child Abduction: Mother’s Asylum) [2003] EWHC 1820 (Fam), where the family courts had concluded that children could be returned to Pakistan, when the mother’s had made asylum claims. However in those cases, no asylum claim had been made by the children, and LJ Black also quoted LJ Laws in Re S who stated ‘I would respectfully suppose that a family judge would at the very 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.’ (para 25).

LJ Black decided against giving guidance in respect of how the family court should to refer the matter to a family High Court judge, preferably one who also had experience in asylum and immigration, as well as suggesting that submissions are heard from the Secretary of State for the Home department as to whether or not the child’s asylum status should or could be revoked. She set out the question to be addressed at that hearing are:

1. Is A’s (the child) refugee status an absolute bar to the family court ordering his return to Pakistan?
2. 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 forthcoming hearing promises to raise significant issues in the overlap between family law and asylum and immigration law, and no doubt any guidance given will be reconsidered in the not too distant future by the Court of Appeal.