G v G

The Supreme Court considered the interaction between the 1980 Hague Convention on the Civil Aspects of International Child Abduction (as incorporated by the Child Abduction and Custody Act 1985) and the domestic and EU-derived regime governing asylum and protection from refoulement, including the 1951 Geneva Convention and the Qualification and Procedures Directives. The principal legal answers were (i) when a child is named as a dependant on a parent’s asylum application and, objectively, that naming can be understood as a request for international protection by the child, that child is to be treated as an applicant and is protected from refoulement pending determination by the Secretary of State; (ii) that protection operates as a bar to the implementation of a return order under the Hague Convention, but does not prevent the Family Division from determining a Hague Convention application or from making a return order (implementation may be stayed); and (iii) the Family Division should generally be slow to stay Hague Convention proceedings, but must exercise case management to co-ordinate with expedited asylum processing where proceedings are related.

This appeal concerned a child, anonymised as G, wrongfully removed from South Africa to England by her mother. The father sought G’s summary return under the 1980 Hague Convention, while the mother had applied for asylum on arrival and had named G as a dependant. The High Court (Lieven J) stayed the Hague Convention proceedings pending determination of the asylum claims; the Court of Appeal lifted that stay. The appeal to the Supreme Court raised three principal issues:

• Nature of the claim: the father sought the child’s return under the Hague Convention; the mother opposed return relying on article 13(b) (grave risk) and article 13(2) (child’s objections) and relied on the pending asylum application in which the child was named as a dependant.
• Issues framed by the court: (i) whether a child named as a dependant on a parent’s asylum application can objectively be understood to have made an asylum application and thus be protected from refoulement pending determination; (ii) if so, whether that protection bars the Family Division from determining the Hague Convention application, from making a return order, or only from implementing any return order; and (iii) how the Family Division should approach the exercise of its discretion about staying Hague Convention proceedings where asylum claims are outstanding.

The Court analysed the legal framework: the mandatory return obligation in article 12 of the Hague Convention, the exceptions in article 13 and article 20, the requirement for expedition in Hague proceedings (article 11), the 1951 Geneva Convention (notably article 33 on non‑refoulement), the Qualification and Procedures Directives and their transposition into domestic law (including relevant provisions of the Immigration Rules and the Nationality, Immigration and Asylum Act 2002). The Court concluded that article 2(b) of the Procedures Directive and article 2(g) of the Qualification Directive support treating a dependant child as an applicant where, objectively, the parent’s application can be understood as a request for international protection on the child’s behalf. That reading accords with the Directives’ purposes and with domestic practice and guidance (the Dependants API).

The Court held that an applicant child who is awaiting determination by the Secretary of State benefits from article 7 of the Procedures Directive (and the related domestic protections) so as to preclude implementation of a Hague return order until the Secretary of State has made the first-instance decision and, where an in‑country appeal is pursued, until the appeal process (as defined in domestic law) is concluded. The High Court nevertheless remains able to determine the Hague Convention application and to make a return order; the procedural bar is to implementation pending the asylum determination or pending any in‑country appeal that is required to make the remedy effective. The Court emphasised the reciprocal obligation to expedite and to co‑ordinate both asylum and Hague Convention processes and suggested practical case‑management and administrative measures to achieve that.

Appeal allowed in part. The Supreme Court held that a child named as a dependant on a parent’s asylum application who can objectively be understood to have made a request for international protection should be treated as an applicant and enjoys protection from refoulement pending determination by the Secretary of State; that protection bars implementation of a return order under the Hague Convention until the asylum determination (and, where applicable, a pending in‑country appeal) is finally resolved. The Court rejected the submission that the Family Division must not determine Hague Convention proceedings while a related asylum claim is pending and held that the bar operates only on implementation, not on determination or on making an order. The Court endorsed close case‑management and co‑operation between the Family Division and the Secretary of State to secure expedition in both processes.

First instance proceedings in the Family Division, High Court (Lieven J stayed Hague Convention proceedings) [2020] EWHC 1886 (Fam). Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) lifted the stay: [2020] EWCA Civ 1185. Appeal to the Supreme Court allowed in part: [2021] UKSC 9.