K (A Child) (Stay of Return Order: Asylum Application) (Contact to a Parent in Self-Isolation)

The commencement of an asylum application by or on behalf of a child bars enforcement of a return order under the Hague Convention 1980 until the asylum process, including appeals, has concluded. The bar applies even where the application appears tactical or may ultimately prove dishonest. The legitimacy of the claim is for the Secretary of State, not the Family Court, to determine. During the stay, the court retains jurisdiction under Child Abduction and Custody Act 1985, section 5, to give welfare and contact directions. A child should ordinarily not visit a parent who is required to self-isolate after international travel where the child is not part of that parent’s household, although exceptional cases may exist.

The proceedings concerned a father’s application for a further stay of a return order made by Cobb J under the Hague Convention 1980. The order required nine-year-old K to return to Russia. After permission to appeal had been refused, the father arranged for K to make an asylum application. The mother argued that the application was a sham and sought enforcement, disclosure of the asylum grounds, and contact and welfare directions. The court also considered whether contact could occur while the mother was required to self-isolate under The Health Protection (Coronavirus, International Travel) (England) Regulations 2020.

1. Stay granted. The commencement of an asylum application by or on behalf of a child prohibited enforcement of the return order. The judge followed E v E (Secretary of State for the Home Department intervening) [2017] EWHC 2165 and accepted the related conclusions in F v M (Joint Council for the Welfare of Immigrants intervening) [2017] EWHC 949. The Home Secretary, rather than the Family Court, was entrusted with determining whether return would expose the child to persecution.
2. The bar was not removed by an apparently tactical or sham application. Any concerns about the alleged risk could be communicated to the Secretary of State. The stay was to continue until 15 days after the tribunal’s decision on the asylum claim.
3. The court declined immediately to order the father to provide a statement setting out the asylum grounds. Confidentiality protections and the public interest in candid asylum applications required consideration, including submissions from the Secretary of State. Parental responsibility did not automatically confer a right to information where the parent might be connected with the alleged persecution.
4. Under section 5 of the Child Abduction and Custody Act 1985, the court retained broad interim welfare and contact jurisdiction until the child left the jurisdiction. The contact application was adjourned and an expert assessment was directed.
5. The provisional view was that the quarantine rules contained no automatic exemption permitting a child outside the parent’s household to visit a parent who was self-isolating after international travel.

The return order was made by Cobb J on 16 July 2020. Permission to appeal was refused by Peter Jackson LJ on 4 August 2020, and reconsideration was refused by a Master of the Court of Appeal on 5 August 2020. The present court granted a further stay pending determination of the asylum claim.