When an asylum seeker flees their home country then the Refugee Convention 1951 demands they are not refouled to that country to risk persecution. But when a child is abducted across international borders, the Hague Convention 1980 requires that the child is immediately returned to their habitual residence. What happens when that child, or the abducting parent, is also an asylum seeker? In the recent case of G v G [2021] UKSC 9, the Supreme Court considered the approach when these two Conventions collide.

Mark Smith was part of the team acting on behalf of reunite ICAC in G v G. Reunite ICAC intervened in the appeal, alongside Richard Harrison QC and Jennifer Perrins of 1 King's Bench Walk Chambers and Kim Lehal at Brethertons LLP.

Two Conventions

The Refugee Convention 1951, formed after WWII, is the basis of UK asylum law. The key protection enshrined in the Refugee Convention is that refugees should not be refouled to their home country. UK and EU law extends that protection to asylum seekers, until their claim is determined. The Hague Convention 1980 is aimed at a wholly different situation in which an abducting parent removes a child from the jurisdiction without the consent of the left-behind parent. The protection afforded in that Convention is that the child will be immediately returned unless an exception applies.

The problem

On its face, the two Conventions can march hand in hand: if a child is a refugee then it would amount to an exception to implementing a return order under the Hague Convention. However, the problem lies in the practicalities. Return orders should be made as soon as possible so the child arrangements can be determined in their home jurisdiction, but asylum claims usually take years to determine. So how to ensure refugees are not refouled without opening the door for spurious asylum claims by abducting parents, designed to delay and ultimately thwart a return order?

Four scenarios

The Court of Appeal identified four scenarios: (i) where a child is granted asylum, (ii) where a child’s asylum application is pending, (iii) where a child’s asylum appeal is pending, and (iv) where the child is a dependant on the parent’s asylum application. The Court of Appeal concluded that there was a bar to implanting a return order in Hague proceedings in scenarios (i) and (ii), there was no bar in scenario (iv), and was not required to decide in scenario (iii). The Supreme Court took a different view.

The decision

The Supreme Court ruled that there is a bar to implementing a return order in all four scenarios. The main reason for the change of position in respect of pending appeals is that there is an obligation under (retained) EU law that there should be an effective in-country remedy (para. 152). The Court accepted this is likely to have a “devastating impact” on Hague proceedings and urged a legislative solution (but gave no indication of what such a solution might involve). The Supreme Court also decided that there was a bar in scenario (iv), having concluded the protection against refoulement extends to dependent children (para. 121).

Procedural steps

Many family practitioners may be aghast at the potential issues G v G may cause in child abduction cases, especially in a judgment written by Lord Stephens, a child abduction specialist. The Court listed various steps to smooth the procedural process where there are parallel proceedings, including:

  • The SSHD to intervene in Hague proceedings.
  • The child to be joined as a party to the Hague proceedings.
  • Disclosure of asylum papers to the child’s representative in Hague proceedings.
  • There should usually be disclosure of Hague papers to the SSHD.
  • Consideration of disclosing asylum papers in the Hague proceedings.

Marching hand in hand?

The Home Office has also set up a “specialist asylum team” to deal with such cross-over cases. In addition, the Court recommended that asylum appeals should be heard by a Family Division High Court judge and annexed draft standard directions to its judgment. It remains to be seen whether these steps will effectively deal with the key issue of delay that drives a wedge between these two Conventions, and instead allow them to march hand in hand.

Mark Smith specialises in family law. He regularly appears in applications for child arrangement orders that have an international element. Mark recently appeared in an application for contact where there was a risk of the child being abducted to Poland, advised on the enforcement of child arrangement orders in Belarus, and appeared in a High Court application for a passport seizure order where there was a risk of the child being abducted to Bangladesh. 
Mark appears in immigration and associated judicial review proceedings, including human rights applications for leave to remain outside the Immigration Rules, and asylum and humanitarian protection. He also specialises in Extradition and International law proceedings.