NA (Dismissal of Application Under Hague Convention), Re

An application for summary return under the Hague Convention on the Civil Aspects of International Child Abduction cannot properly succeed where the proposed return cannot lawfully be carried out. This includes a case in which neither the child nor the accompanying parent is permitted to enter and remain in the requested state. The court may dismiss the application on that short basis without determining other Convention defences, including settlement under article 12.

The father applied for the summary return of his four-year-old son from England to Belgium. The child and both parents were Iranian nationals. The mother had brought the child to England in 2013, and the father later obtained refugee status in Belgium, but the mother and child were not entitled to return there under the Dublin II arrangements.

During the proceedings, the father was given an opportunity to produce authentic Belgian documentation showing that both the mother and child could lawfully enter and remain in Belgium. He did not produce it. Meanwhile, the mother and child were granted asylum in the United Kingdom for five years. The central issue was whether a return order could lawfully and practically be given effect.

1. The application for summary return to Belgium was dismissed.

2. A return order under the Hague Convention on the Civil Aspects of International Child Abduction should not be made where it is not practicable or possible for the order to be given lawful effect. The court could not lawfully return the child to a state which would not permit the child or the mother to enter and remain there.

3. The father had been given more than six weeks to obtain an authentic official laissez-passer or similar document for each of the mother and child. He had been unable to do so, and there was no realistic prospect of lawful admission to Belgium.

4. The grant of asylum and five years’ leave to remain in the United Kingdom removed any imminent prospect of removal to Iran and extinguished any remaining scope for the Dublin II arrangements or consideration of the asylum claim in Belgium.

5. The court did not determine whether the child was settled within article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, or any other Convention defence. Those issues were unnecessary to the disposition.