In the case of G (A Child : Child Abduction) [2020] EWCA Civ 1185, the Court of Appeal has confirmed that, where a child has been granted refugee status in their own right, or has their own pending asylum claim, they cannot be returned under the Hague Convention. When a child is a dependant on an asylum claim, however, they can be returned. Either way, the Family Court can make a decision on an application for a return order, or indeed make a return order, but the implementation of said order may need to be stayed.

The case makes an interesting read for anyone interested in the interplay between child law and refugee law. Specifically, in the words of the Court of Appeal, it considers “the apparent tension between the objective of the former expeditiously to return a wrongfully removed or retained child to his home jurisdiction and the principle of the latter that refugees should not be refouled (i.e. expelled or returned to a country where they may be persecuted)” [paragraph 2].

Background

G is about eight years old and grew up in South Africa. Her parents divorced in 2018 but continued to share parental responsibility. In March 2020, G’s mother took her to the UK, and claimed asylum, adding G as a dependant on her claim. G’s father made an application to the South African authorities for the return of G under the 1980 Hague Convention on child abduction.

When considering G’s father’s application for the return of G, Mrs Justice Lieven of the Family Division of the High Court found that a decision could not be made until the Secretary of State had determined G’s asylum claim. Significantly, at the time Lieven J was under the impression that G had made her own asylum claim, rather than being a dependant on her mother’s claim.

G’s father appealed against the Family Division’s order.

Legal principles on Hague Convention / asylum clash

After an in-depth analysis of the legal framework in which Hague Convention and asylum applications are made, and previous case law on the interface between the two, the Court of Appeal made the following findings:

1. Children with refugee status cannot be returned under the 1980 Hague Convention to the country from which they have been given refuge (or to a third country from which they risk being removed to such a country). [127]
2. Children with pending asylum claims of their own (rather than as dependants) also cannot be returned under the Hague Convention while the claim is pending [131]. Note that the court only made a decision on asylum claims pending an initial decision by the Secretary of State. It did not address the position for a child whose claim has been refused by the Home Office and is waiting for an appeal, other than commenting that “it is in our view vital that steps are taken to avoid asylum appeals being used as a tactical device to delay and potentially prevent the return of children under the 1980 Hague Convention”. [136]
3. Paragraph 329 of the Immigration Rules, which prohibits the removal of a dependant while the principal applicant’s asylum claim is pending, does not act as a bar to a Hague Convention return. This is because the rule exist to preserve family life rather than the rights of refugees, and the Hague Convention itself is “driven by welfare considerations and the principle of family unity” [140].
4. Any bar to return applies only to implementation. In other words, even where a child cannot be returned under the 1980 Hague Convention because they have been granted refugee status or are waiting for a decision on their claim, the High Court is not prevented from determining an application for a return order, or indeed from making a return order. If a return order is made, though, the family judge may be required to stay implementation. [152]

In G’s case, the Court of Appeal concluded that the Family Division make a decision on the return application, because there is no bar to making a determination. And should it decide to order return, this could indeed be implemented because G was a dependant on her mother’s claim, rather than having her own asylum claim.

Information exchange between Home Office and High Court

It is also worth noting paragraph 166 of the judgement, relating to the exchange of information between the Secretary of State and the High Court:

i) Where the child is said to have “refugee status”, the High Court should promptly ask the Secretary of State whether this is a reflection of a determination that the child is a refugee as defined in article 1A of the 1951 Geneva Convention or simply as a the [sic] result of the child being a named dependant of a successful asylum application by a parent (see paragraph 126 above).

ii) The High Court should promptly inform the Secretary of State that an application has been made under the 1980 Hague Convention when the court is aware that an asylum claim has been made by the taking parent or the child. In the absence of powerful reasons to the contrary – and it is not easy to conceive of any such reasons – the papers in the Convention application should be disclosed to the Secretary of State.

iii) The High Court should promptly inform the Secretary of State in the event that it decides to stay the determination of the application under the 1980 Hague Convention pending the resolution of the asylum claim(s) and/or appeal(s).

iv) The High Court should promptly provide the Secretary of State with the court’s judgment determining the application under the 1980 Hague Convention.

v) The High Court should request the Secretary of State to keep the High Court informed of the progress of the asylum claim(s) and/or appeal(s) and of any reconsideration of refugee status.

Note on Brexit (why not?)

Last but not least, the Court of Appeal noted that rights conferred by a European Union Directive will be retained if they have been “either transposed or in any event recognised (either as part of the ratio of the case or obiter) by the domestic courts” before the end of the transition period, on 31 December 2020. [50]