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This week’s blog is brought to you by Rebecca Cowell – pupil to Charles McCain

 

The Supreme Court handed down its judgment in G v G [2021] UKSC 9 on 19 March 2021.

The parties to this appeal were the parents of an eight-year-old girl (hereafter referred to as “G”).  G was born in South Africa, where she has been habitually resident all her life.  In March 2020, G’s mother wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody.

G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa.  The mother opposed his application on the ground, in particular, that there was a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation.

The mother identifies as a lesbian. She alleged that after separating from the father and coming out as lesbian, her family subjected her to death threats and violence.  On her arrival to England, she applied for asylum on the basis of her fear of persecution by her family.  She listed G as a dependant on her asylum application.

The High Court, on the father’s application to return G to South Africa, held that the determination of the 1980 Hague Convention application should be stayed until the Secretary of State had determined G’s asylum application.

The father appealed to the Court of Appeal.  The Court of Appeal allowed the father’s application and held that the High Court was wrong to proceed on the basis that there was a bar to determining the 1980 Hague Convention application, because 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 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.  The Court of Appeal also said that the High Court should be slow to stay such application prior to determination in relation to the asylum claim.

The mother appealed to the Supreme Court.  The Supreme Court held that the protection from refoulement of a child who can objectively be understood to be an applicant for asylum applies during the determination of their application by the Home Secretary and an asylum claim is not determined until the conclusion of any appeal.  While the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim.  There is no bar to the High Court deciding that the 1980 Hague Convention application prior to the determination of the asylum claim, however and it should be slow to stay 1980 Hague Convention proceedings.  A reasoned judgment on whether a child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist in the prompt determination of the asylum claim by the Home Secretary.  The High Court has power to set aside its decision if the asylum claim is successful.

The Supreme Court added that all those involved in the 1980 Hague Convention Proceedings, including the Home Secretary in determining any related application for asylum, must act promptly if the UK is to fulfil its obligations under the 1980 Hague Convention.

This case deals with issues of some importance in relation to the interplay between obligations of the state on one hand, under the Convention on Civil Aspects of international Child Abduction and on the other hand under immigration law including the Convention and Protocol relating to the Status of Refugees and the relevant European Directives.  There is an 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, along with issues as to the rights of children in the context of such situations.

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