H (A Child)

Disclosure of asylum materials in Hague Convention proceedings requires a proportionality assessment, not an exceptionality test. The court must balance the applicant’s Article 6 and Article 8 rights against the asylum claimant’s Article 3 and Article 8 rights and the compelling public interest in preserving asylum confidentiality. Particular weight should be given to confidentiality where the disclosure applicant is the alleged persecutor. Refugee status prevents a return order to the state of persecution unless that status has been revoked and appeals determined. A pending asylum application will ordinarily create the same practical impediment. Disclosure is unnecessary where the applicant already has sufficient information to present the Hague Convention case. Special advocates do not remove the damaging effect disclosure may have on confidence in the asylum system.

The father applied under the 1980 Hague Convention for the summary return of his seven-year-old son to DD. The child had been wrongfully removed by the mother, who subsequently obtained refugee status for herself and the child after an asylum claim based on domestic and sexual abuse and the absence of effective protection in DD. The father sought disclosure of the mother’s asylum file, the child’s pending asylum file, disclosure to the court or guardian, and the appointment of special advocates.

The mother, the child’s guardian and the Secretary of State opposed disclosure. The central issues were whether the asylum materials were relevant to the Hague Convention defences, including settlement and grave risk, and how the competing Convention rights and the confidentiality of the asylum process should be balanced.

1. Refugee status and return. A person with refugee status cannot be returned to the state of persecution unless and until that status has been revoked and all appeals have been determined. The court could not identify any authority for returning a child with refugee status, or for returning a child while an asylum application remained pending. The child’s pending application made disclosure of its contents particularly sensitive.
2. Applicable disclosure approach. There was no exceptionality test and no presumption that disclosure could occur only in an exceptional case. The court had to conduct its own balancing exercise. It had to consider the mother’s and child’s Article 3 and Article 8 rights, the father’s and child’s Article 6 and Article 8 rights, and the wider public interest in maintaining confidentiality in the asylum system. The Secretary of State would frequently be better placed to advise on the balance, but the decision remained one for the court.
3. Application to the evidence. The father already had the tribunal’s detailed decision, the mother’s statements and exhibits, and substantially more than the gist of her asylum case. Disclosure of the forged affidavit would add little: the tribunal judge knew of it and had accepted the mother’s explanation. The asylum materials were also unnecessary to determine whether the child was settled, since the father could challenge the guardian’s evidence and rely on the material already available.
4. Confidentiality and special advocates. Confidentiality was vital to the effective operation of the asylum system and to public confidence in it. Disclosure of material from either the completed or pending asylum application could seriously undermine that integrity. Disclosure to the court, guardian or special advocates would not cure the problem, because it would diminish the assurances of confidentiality given to asylum applicants.
5. Order. The father’s applications for disclosure, disclosure to the court or guardian, and the appointment of special advocates were refused. The Hague Convention proceedings were to continue before the trial judge.