Mark Smith writes for Freemovement, published on 5 October 2026.
In March 2021, the Supreme Court handed down its decision in G v G [2021] UKSC 9. The case considered the potential clash between the Refugee Convention 1951 and the Hague Convention on Child Abduction 1980. But there have been significant developments since then – how applicable is G v G now?
The problem
The situation G v G attempted to address was when a child is abducted into the UK and they, or the abducting parent, make a claim for asylum. The Hague Convention 1980 requires that the child is swiftly returned to the country of their habitual residence, but the Refugee Convention 1951 demands that asylum seekers are not refouled to a country where they are at risk of persecution. What if both Conventions are engaged?
The Supreme Court in G v G
The Supreme Court ruled that there is a bar to implementing a return order under the Hague Convention 1980 where a child is an asylum applicant in their own right or a dependant on their parent’s application, whether their application is granted, pending or subject to appeal. The court accepted this is likely to have a ‘devastating impact’ on the six-week time in Hague proceedings, as final asylum determinations can take many months or even years. There is also the risk of tactical asylum claims being made to frustrate the child’s return. The court urged a legislative solution but gave no indication of what such a solution might involve.
Procedural steps
The Supreme Court set out procedural guidance aimed at helping the two conventions to operate ‘hand in hand’ and this formed the basis for the guidance by the President of the Family Division and Senior President of Tribunals. Prompted by G v G, the Home Secretary issued guidance on family asylum claims and set up a ‘specialist asylum team’ to deal with such cross-over cases. These cases should be considered in line with an operating instruction for Hague Convention cases that sets out a timetable for straightforward asylum decisions to be made within 31 days.
Withdrawal of asylum claim
One way of alleviating the potential conflict is by withdrawing the asylum claim in appropriate circumstances. In J v H [2022] EWHC 862 (Fam), Theis J declared that where a child was being looked after by the local authority, that authority was able to withdraw them as asylum dependants under section 33 of the Children Act 1989. In that case it was not necessary to invoke the inherent jurisdiction of the High Court as the parents (eventually) consented to the withdrawal.
Third country cases
‘Third country’ cases are where asylum is sought from one country, but a return order is sought to a different country altogether. In G v G, the Supreme Court based its decision on the EU Asylum Procedures Directive, which imposes a positive duty that asylum applicants must be ‘allowed to remain’ in a member state until their application has been determined. This goes further than the Refugee Convention, which only imposes a negative duty not to remove a refugee to their home country. The Procedures Directive meant that children could not even be returned to a ‘third country’ until their asylum application was finally determined.
However, now it is clear that the Procedures Directive has been repealed post-Brexit (see R(AAA) v SSHD [2023] UKSC 42), so where does that leave us?
A series of High Court judgments have clarified that an asylum application does not impact a return order to a safe third country. In Re A (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) [2024] EWFC 178 and Re K(Children) (Application for return orders: Concurrent asylum claims) [2025] EWHC 450 (Fam), the court implemented return orders under the Hague Convention 1996 and the inherent jurisdiction, respectively. Albeit, neither case relied on the Hague Convention 1980, Re K is explicit that the same considerations would apply to the 1980 Convention.
What’s next?
There are signs that the effect of G v G might be further eroded. In Re C (A Child)(Abduction Grave Risk Asylum Claim Childs Objections) [2025] EWHC 3461(Fam), the court implemented a return order to the USA despite an outstanding asylum appeal. Despite not being a ‘third country’ case, the court reasoned that the ‘real risk’ threshold for establishing refugee status is lower than the ‘grave risk’ threshold that must be established under Article 13b of the 1980Convention. Having concluded there was no grave risk, Harrison J confirmed there could be no real risk either. Immigration practitioners may find it particularly surprising that the decision was made without any information as to the basis of the asylum appeal.
Re C is clearly an attempt to give effect to the swift return required under the Hague Convention 1980 and avoid the ‘devastating impact’ foreseen in G v G where abducting parents might use the asylum process to frustrate return. The asylum claim was made four months after entry, and the Home Secretary took eight months to determine it. By the date of the judgment, 16 months had already elapsed since the abduction.
Although the guidance envisages an asylum decision within a month and ‘close liaison’ between the Family Division and the tribunal to assist disclosure and expedite appeals, obviously further work is required to make sure this works effectively in practice so that the two conventions can actually operate ‘hand in hand’.
Tips for practitioners
Asylum practitioners will benefit from familiarising themselves with the above guidance when dealing with a Hague asylum case. It is also helpful to consider the following.
Communication
Immigration practitioners are likely to became involved for the abducting parent who has made an asylum claim naming the child as a dependant. It is important to liaise with the family lawyers instructed in the abduction proceedings from an early stage so that you can identify case management issues at the first opportunity.
Disclosure
Consider whether it would assist for the abduction court to see the asylum papers if there is overlap in the issues. The High Court will carry out a balancing exercise in line with Re H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001 before documents are disclosed to the other parent in the abduction proceedings. There may also be material in the abduction proceedings that you would want to be disclosed to the tribunal, such as admissions by the other parent about perpetrating domestic abuse.
Expedition
It may be in your client’s interests to expedite the tribunal proceedings if a favourable outcome is likely, as a grant of asylum will prevent a Hague order returning the child to their home country and so may determine the abduction proceedings. You can discuss such strategic decisions with your client’s abduction solicitors and counsel.
Mark Smith is a barrister specialising in family, extradition, and immigration matters. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions.
He is recognised within the Legal 500 for his work in international crime & extradition, immigration and family: Children. Mark is recognised in Chambers & Partners for extradition and immigration. Mark has appeared in the Supreme Court and the Court of Appeal, as well as the High Court Family Division in relation to international family matters and the Administrative Court in extradition proceedings.
