Refoulment and 1980 Hague Convention proceedings

Refoulment and 1980 Hague Convention proceedings

In G v G [2021] UKSC 9, the Supreme Court determined that a child in 1980 Hague Convention proceedings who could objectively be understood to be an applicant for asylum could not be returned to the country from which they sought refuge before the final determination of the asylum claim. Ralph Marnham, barrister at 4PB, considers the issues.

Background

This appeal considered the competing obligations between the 1980 Hague Convention and asylum law. On the one hand, the State has a duty to expeditiously return a wrongfully removed or retained child to their home jurisdiction and on the other the State also has a duty to protect refugees from refoulement, that is the expulsion or return to the country where they may be persecuted.

The parties were the divorced parents of an eight-year-old girl who was born in South Africa and habitually resident in that country until she was wrongfully removed by her mother to England, in breach of the father’s custody rights. The child’s mother fled South Africa having been subjected to threats from her family after coming out as a lesbian. On her arrival in England, she applied for asylum and listed the child as a dependant on her asylum application.

The child’s father applied for an order under the 1980 Hague Convention for her return to South Africa. The mother opposed the application. At first instance, Lieven J held that the application should be stayed pending the determination of the mother’s asylum claim (although she had been misinformed that the child had made an application as well). The Court of Appeal held that the High Court was not barred from determining the father’s application or making an order for expeditious return.

A central issue in the matter was how both sets of proceedings could be coordinated, as there was a real risk that by the time an asylum application had been determined, the relationship between the left behind parent and the child might be harmed beyond repair.

Issues      

The following three grounds of appeal were before the Supreme Court: 

  • whether a child named as a dependant on a parent’s asylum application has any protection from refoulment
  • whether a return order be made under the 1980 Hague Convention even when a child had protection from refoulement, and
  • whether the High Court should be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum

The appeal 

The Supreme Court substantially allowed the mother’s appeal and held that a child who could objectively be understood to be an applicant for asylum could not be returned to the country from which they sought refuge before the final determination of the asylum claim. The mother was unsuccessful on her second and third grounds of appeal. The case was remitted to the High Court for reconsideration of the 1980 Hague Convention application. 

On the first ground, the court held that an asylum application which listed a child as a dependent was also an asylum claim by that child if it could objectively be understood as such. The court reasoned that this would normally be the case as the adult’s grounds for fearing persecution would likely apply to their child. Consequently, an omission by the child to make an application in their own right could not be determinative as in any event it would be the parent who would be making the application on the child’s behalf. The child should therefore be entitled to the same protection from refoulement as the adult (paras [117]-[121]). 

On the second and third grounds, the court held that there should not be a bar to the High Court deciding the 1980 Hague Convention application prior to the determination of the asylum claim and that a court should be slow to stay the proceedings (paras [154]-[162]). A reasoned judgment on whether a child should be returned might also assist the prompt determination of the asylum claim by the Home Secretary (para [160]). The court highlighted the risk that delay might have on the 1980 Hague Convention proceedings and that urgent consideration should be given to a legislative solution (para [152]). 

The Supreme Court also proposed (at paras [163]-[177]) a variety of steps that should be considered by those involved in these types of cases. These included: 

  • requests for the Home Secretary to intervene in Hague Convention proceedings, disclosure of documents from the asylum proceedings, and
  • joining the child as a party and assigning the asylum appeal to a High Court Family Division judge.

Standard directions were also suggested although it was acknowledged that this was a matter for the High Court (para [174]). 

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