G (A Child : Child Abduction)

Refugee recognition or a pending independent asylum application may prevent the actual return of a child to a country where refoulement would occur. It does not, however, bar the High Court from determining an application under the 1980 Hague Convention or making a return order. A child named only as a dependant in a parent’s asylum claim has no such bar.

The court should generally be slow to stay Hague Convention proceedings because expedition is fundamental. The decision whether to stay remains fact-sensitive, having regard to timing, the nature of the risks, available evidence, the child’s welfare, separation from each parent and human rights. A child should ordinarily be joined where the taking parent has made an asylum claim.

The father appealed against Lieven J’s order staying his application for the summary return of his daughter to South Africa under the 1980 Hague Convention. The stay was granted because the mother and, as the parties then understood, the child had pending asylum claims. The Secretary of State later confirmed that no independent asylum application had been made for the child, who had only been named as the mother’s dependant.

The appeal concerned the effect of refugee status, pending asylum claims and appeals on Hague Convention proceedings; the proper approach to a stay; the child’s participation; and liaison and disclosure between the Family Division and the Secretary of State.

1. Disposition. The appeal was allowed on Grounds 1 and 3. Ground 4 was dismissed. Permission to appeal on Ground 2 was refused, and the matter was remitted to the Family Division.
2. A child recognised by the Secretary of State as a refugee cannot generally be returned under the 1980 Hague Convention to the country from which the child has been given refuge, or to a third country from which refoulement to that country is risked. Refugee status is for the Secretary of State to determine, subject to statutory appeal or conventional judicial review. The High Court cannot question that status or the non-refoulement rights attached to it. This does not apply to a dependant described in policy as having refugee status when the dependant does not personally satisfy the refugee definition.
3. An independent asylum application made by or on behalf of a child operates as a bar to actual return while the application remains pending, through article 7 of the Procedures Directive as recognised in domestic law. The bar concerns implementation only. It does not prevent determination of the Hague application or the making of a return order. The court expressly left open whether a pending asylum appeal creates a similar bar.
4. There is no bar where the child is merely named as a dependant in the taking parent’s asylum claim. The protection in paragraph 329 of the Immigration Rules concerns family unity, not non-refoulement, and cannot prevent a return under the Hague Convention.
5. The Hague Convention and asylum processes involve different decision-makers, statutory tests, risk assessments, evidence and approaches to the child’s participation. A Hague court must not determine refugee status, but must determine the return application on its own statutory basis. It should generally be slow to stay before determination, while considering timing, the nature of the risks, evidence, separation, welfare and human rights. Possible outcomes include a return order stayed pending the asylum outcome, an order with a later return date, or findings without an immediate order.
6. The taking parent’s asylum status does not itself bar a return order because the order requires only the child’s return. The parent’s situation may nevertheless be relevant to the article 13(b) assessment. Where the taking parent has made an asylum claim, the child should ordinarily be joined as a party. The court should promptly notify the Secretary of State, ordinarily disclose the Hague papers to her, provide its judgment and request progress updates.

1. Court of Appeal (Civil Division) — appeal allowed in part. The stay was set aside and the matter remitted to the Family Division.
2. High Court, Family Division — Lieven J stayed the father’s Hague Convention return application pending determination of the asylum claims: [2020] EWHC 1886 (Fam).