G (A Child: Child Abduction) – Family Law Week case summary

September 21, 2020

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?”

Read the full summary on Family Law Week.