G v G

A child named as a dependant on a parent’s asylum application should generally be treated as having applied for international protection where the application can objectively be understood in that way. A Hague Convention return order cannot be implemented while the Secretary of State determines that application or during an in-country asylum appeal. An out-of-country appeal creates no such bar.

The bar concerns implementation only. The Family Division may determine the return application, make factual findings overlapping with the asylum claim and make a return order. It must not determine refugee status. The court should be slow to stay return proceedings, and both processes must be expedited and co-ordinated.

The mother wrongfully removed her eight-year-old daughter from South Africa to England. The father sought her return under the 1980 Hague Convention and the Child Abduction and Custody Act 1985. The mother relied on grave risk and the child’s objections. On entering the United Kingdom, the mother also sought asylum and named the child as her dependant.

Lieven J stayed the return proceedings pending the asylum decision: [2020] EWHC 1886 (Fam). The Court of Appeal allowed the father’s appeal and lifted the stay: [2020] EWCA Civ 1185. It held that naming the child as a dependant created no bar to implementing a return order, while a child’s independent asylum application would bar implementation.

The issues were whether the dependant child should herself be treated as an asylum applicant, what protection followed, whether that protection prevented determination or only implementation of a return order, and when Hague proceedings should be stayed.

1. Appeal allowed in part unanimously. Lord Stephens delivered the sole judgment, with which the other members of the court agreed. A request for international protection made by a parent naming a child as a dependant generally can and should objectively be understood as an application by the child. That interpretation accords with the wording and humanitarian purposes of the Qualification and Procedures Directives and ensures that the child’s individual protection needs are considered.
2. An objectively understood child applicant is protected by article 7 of the Procedures Directive and paragraph 329 of the Immigration Rules. A return order under the 1980 Hague Convention cannot be implemented before the Secretary of State decides the application. The Secretary of State is the designated authority with exclusive responsibility for determining refugee status. Findings made in the return proceedings may assist but cannot bind or replace that determination. The reasoning attributed by the Court of Appeal to In re S (Children) (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843 concerning paragraph 329 was incorrect; the case’s reference to family life concerned protection pending an appeal.
3. An asylum application remains pending until the appeal process described by section 104(1) of the Nationality, Immigration and Asylum Act 2002 has concluded. An in-country appeal bars implementation of a Hague return order because returning the child to the country of alleged persecution would render that remedy ineffective and risk refoulement. An out-of-country appeal does not bar implementation.
4. The protection bars actual return only. It does not prevent the Family Division from determining the Hague application or making a return order. The court may resolve factual issues which overlap with an asylum claim, including facts relevant to an article 13(b) grave-risk defence, provided that it does not purport to determine refugee or subsidiary-protection status. A subsequent asylum decision can be addressed through the court’s power to review and set aside its Hague order.
5. The High Court should be slow to stay Hague proceedings before determination. That approach reflects the Convention duties of expedition and priority. Those duties extend to every step in a related asylum process, which should, so far as possible, be completed in weeks rather than months. The court and the Secretary of State owe corresponding duties to assist and co-ordinate their respective processes.
6. Article 12 generally requires forthwith return, subject to the Convention exceptions. Under article 13(b), the relevant risk is to the child, but harm or severe anxiety affecting the taking parent may create an intolerable situation for the child. Article 20 has domestic effect through section 6 of the Human Rights Act 1998, but cannot be used to evade the rigours of the other exceptions.
7. Grounds two and three were dismissed. The Court of Appeal’s order lifting the stay was maintained, and the Hague application remained remitted to the Family Division.

1. United Kingdom Supreme Court: In G v G [2021] UKSC 9, the court unanimously allowed the mother’s appeal on the first ground, dismissed the second and third grounds, maintained the lifting of the stay and left the Hague application remitted to the Family Division.
2. Court of Appeal: In [2020] EWCA Civ 1185, the court allowed the father’s appeal and removed the stay. It held that a child merely named as a dependant was not protected against implementation of a return order, although an independent asylum application by the child would bar implementation pending its determination.
3. High Court, Family Division: In [2020] EWHC 1886 (Fam), Lieven J stayed the Hague proceedings pending the Secretary of State’s determination of what the judge had been incorrectly informed were separate asylum claims by the mother and child.