CDG (A Child) (Article 13(b): Refugee Status and Safe Third Country), Re

Recognition as a refugee in the United Kingdom, including status granted in line as a dependant, does not create an automatic bar to a Hague return order to a third country. In an Article 13(b) case, the opposing party bears the ordinary civil burden of establishing a grave risk; the lower real-risk standard in asylum and Article 3 cases does not replace it. However, substantial grounds for fearing a real risk of refoulement or Article 3 ill-treatment would itself establish grave risk of an intolerable situation. A presumption that the requesting State’s authorities are equally adept may be displaced only by concrete evidence. Individual assurances are required only where evidence first establishes the relevant risk. No grave risk was shown and a return order was made, stayed pending German entry and residence permits.

The father sought the return of CDG to Germany under the 1980 Convention after the mother wrongfully removed him to the United Kingdom. The mother and CDG had been granted United Kingdom refugee status in line with the mother’s status, following her asylum claim concerning Eritrea. She resisted return under Article 13(b), relying on the risk of onward refoulement from Germany to Eritrea, domestic abuse, uncertain immigration status, lack of practical support, and her asserted unwillingness to return. The parties could not obtain expert evidence on German immigration law. The central issue was whether return would expose CDG to a grave risk of harm or an intolerable situation, considered cumulatively with the other asserted circumstances.

Disposition. The application was granted. A return order was made, but its operation was stayed pending the mother and both children obtaining entry and residence permits for Germany.

1. The burden under Article 13(b) lay on the mother as the person opposing return, on the ordinary balance of probabilities. The court followed the approach in In re E and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10 and Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123. The Hague threshold remained grave risk. The lower real-risk standard in asylum and Article 3 claims could not simply be substituted.
2. Nevertheless, substantial grounds for fearing a real risk of breach of the non-refoulement principle or Article 3 of the ECHR would itself establish a grave risk of an intolerable situation. Individual assurances were not required as a general precaution. Under Tarakhel v Switzerland (2014) 60 EHRR 28 and EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, the need for assurances arose only where evidence first showed substantial grounds for a real risk, such as systemic failures.
3. The court applied the Hague presumption that the requesting State’s administrative, judicial and social-service authorities are equally adept at protecting children, including its immigration authorities. That presumption could be displaced only by concrete evidence. The material from the prospective German expert was unsourced, unreasoned and insufficient to establish a real risk of onward refoulement.
4. The court assessed the alleged domestic abuse and the prospective circumstances in Germany concretely and cumulatively. It scrutinised the mother’s assertion that she would not return with CDG in accordance with R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296, but found the assertion inadequately evidenced. Re A and Others (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) [2024] EWFC 178 was distinguished because it concerned primary welfare jurisdiction, governed by section 1 of the Children Act 1989, rather than a summary Hague forum decision.
5. The court found no grave risk of intolerability. Alternatively, the father’s undertakings, if recognised and enforceable in Germany, together with the protection architecture and social assistance presumed to be available there, would sufficiently mitigate any risk. The order was stayed to allow lawful re-entry and residence arrangements to be obtained.

not stated in the judgment.