GA & Ors, R (on the application of) v Secretary of State for the Home Department

The court quashed HM Passport Office's ongoing refusal to process passport applications for three British children on the basis that their father (in Country X) had not consented. The judge found that HM Passport Office acted in accordance with internal guidance that treated parental responsibility as to be determined by the 1996 Hague Convention and the law of the child’s habitual residence, but that the decision was vitiated by public law error because the evidential basis for concluding that under Country X law the mother lacked authority to apply was inadequate. The court further held that, even if Country X law required the father's consent, Article 22 of the 1996 Hague Convention permitted the United Kingdom to refuse to apply that foreign law where such application would be manifestly contrary to public policy taking into account the best interests of the child. On the facts, application of Country X law would have been manifestly contrary to public policy and would have discriminated on grounds of sex contrary to Article 14 read with Article 8 ECHR; the Secretary of State therefore had to treat the mother's application as having been made by a person with authority to do so.

This is a first-instance judicial review brought by a British mother (GA) and her four children challenging HM Passport Office's (HMPO) refusal to process passport applications for three of the children unless their father in Country X gave consent. The factual background was that GA and the children had been living in Country X and GA alleged extensive domestic abuse by the father; in court proceedings in Country X he admitted causing her bodily harm and signed a court-authenticated letter permitting the children to travel with their mother to visit her parents. GA applied for British passports for three children in December 2019 and HMPO declined to progress the applications without the father's consent, relying on internal guidance and the 1996 Hague Convention conflict-of-laws rule that parental responsibility is governed by the law of the child's habitual residence (Country X). The mother contended that HMPO's stance was irrational, disproportionate, contrary to its own guidance, unlawfully fettered, incompatible with Articles 2, 3 and/or 8 ECHR and discriminatory under Article 14.

The court addressed: (i) whether HMPO was entitled or obliged to apply the 1996 Hague Convention choice-of-law rule; (ii) whether the children were habitually resident in Country X; (iii) whether HMPO had an adequate evidential basis for concluding that under Country X law the father had sole parental responsibility so as to prevent the mother applying; and (iv) whether Article 22 of the 1996 Hague Convention permitted refusal to apply the foreign law on public policy grounds taking into account the best interests of the child, and if not, whether human-rights objections (Article 8 read with Article 14) required HMPO to treat the mother as having authority to apply.

The court found that HMPO's passport rules and internal guidance legitimately required consent from a person with parental responsibility and that HMPO could properly treat parental responsibility as determined by the 1996 Hague Convention. The children were habitually resident in Country X. However, the Country X "Country Profile" used by HMPO was an unsourced, high-level document and provided no proper evidential basis for the specific finding that, in these particular circumstances (notably the court-authenticated travel permission), the mother lacked authority to apply for British passports. That deficiency vitiated HMPO's decision and justified a quashing order.

Moreover, even if Country X law generally allocated parental responsibility to the father, Article 22 of the 1996 Hague Convention allows refusal to apply that foreign law where such application would be manifestly contrary to public policy taking into account the best interests of the child. On the evidence (detailed, consistent statements from the mother and supporting material from her mother), the court concluded Article 22 applied: applying Country X law would have enabled the father to continue to exert control and would have risked grave harm to mother and children. Applying Country X law here would also have amounted to direct sex discrimination incompatible with Article 14 read with Article 8, and therefore contrary to s.6(1) Human Rights Act 1998. The judge quashed the decision and declared HMPO obliged to treat the mother's applications as having been made by a person with authority to do so. The court invited submissions on the precise form of orders and ancillary relief.

First instance: The claim succeeds. The court quashed HM Passport Office’s ongoing decision to refuse to process passport applications for three children absent the father’s consent because (i) HMPO had no rational evidential basis for concluding that, in the particular circumstances and in light of a court-authenticated letter permitting travel, the mother lacked authority under the law of Country X to apply for British passports; and (ii) even if Country X law generally allocated parental responsibility to the father, Article 22 of the 1996 Hague Convention permitted refusal to apply that foreign law where such application would be manifestly contrary to public policy taking into account the best interests of the child. The court also held HMPO’s approach was incompatible with Article 14 read with Article 8 ECHR and s.6(1) of the Human Rights Act 1998, and therefore HMPO must treat the mother as having authority to make the applications.