CASE NOTE: G v G  UKSC 9
On Friday, 19 March 2021 the Supreme Court decision in G v G  UKSC 9 (herewith referred to as “G v G”) was published. This case concerns the interface between international child abduction and asylum law.
A number of barristers from Harcourt appeared in this appeal: Edward Devereux QC appeared on behalf of the respondent mother (instructed by Dawson Cornwell), Mehvish Chaudhry and Paige Campbell acted for the International Centre of Family Law Policy and Practice (instructed by Bindmans LLP).
Background in brief
The child (“G”) was born and raised in South Africa.
The parties are the parents of an eight-year-old girl (“G”). G was born in South Africa, where she has been habitually resident all her life. In March 2020, G’s mother, the appellant, wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody. G’s father, the respondent, applied for an order under the 1980 HC for G’s return to South Africa. The mother opposed his application on the ground, in particular, that there is a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation.
The mother alleged that she had experienced persecution from her family on the basis of her sexual orientation and so fled with the child to England where she made an application for asylum. Prior to this, G had been spending extensive time with her father including alternate weekends and half of the school holidays.
At first instance, Mrs Justice Lieven held that the father’s application ought to be stayed pending the determination of the mother’s asylum claim. She also ordered the disclosure of papers from the 1980 Hague Convention proceedings into the asylum proceedings. The father appealed this decision.
The issues before the Court of Appeal were as follows:
- In the context of an application for a return order under the 1980 Hague Convention, does the fact that the child and/or the taking parent have refugee status or a pending asylum claim or appeal act as any form of bar to the determination of the application or the making or implementation of any return order?
- If so, does it act as a bar (a) to the determination of the application or (b) to the making of a return order or (c) only to the implementation of any return order?
- If there is no bar to the determination of the application, how should the court go about its task of deciding whether to determine or to stay the application?
- What part, if any, should the child play in the application?
- What steps should the court take to apprise the Secretary of State of the application under the 1980 Hague Convention and any material used in that application?
The Court of Appeal, in determining the above issues, subdivided the first of those issues into four categories of child:
- a child who has had his/her refugee status recognised by the Secretary of State;
- a child who has made an independent application for asylum, pending determination of the application;
- a child who has made an independent application for asylum which has been refused but has appealed, pending determination of the appeal; and
- a child who has not made an independent application for asylum, but who has been named as a dependant by a principal asylum applicant.
The Court of Appeal considered that, in the circumstances, the High Court was not barred from determining the father’s application for a return order, nor was it barred from making such an order. It did, however, conclude that there is an absolute bar on the implementation of any order, made pursuant to the 1980 Hague Convention regime (and presumably, under the 1996 Hague Convention regime, or the wardship regimes), for the return overseas of an abducted child in circumstances where an application to the Secretary of State for a declaration that the child itself (i.e. not as a dependant) has refugee status has either been granted or has been made and is awaiting determination.
The mother appealed to the Supreme Court on the following grounds:
- Can a child that is named as a dependant on a parent’s asylum application, but has not made a separate independent application for asylum, have protection from refoulement?
- If so, does that protection from refoulement act as a bar (i) to the determination by the Family Division of the High Court of an application for a return order under the 1980 Hague Convention seeking the return of a child to the country of their habitual residence where that child has protection from refoulement, or (ii) to the making of a return order, or (iii) only to the implementation of the return order?
- If there is no bar to the determination of an application under the 1980 Hague Convention, what approach should the Family Division take in relation to the task of deciding that application? In particular, was the Court of Appeal right to hold that the High Court should be slow to stay a 1980 Hague Convention application?
What did the Supreme Court decide?
The Supreme Court determined, in summary, that:
- A child named as a dependant on the parent’s asylum application and who has not made a separate request for international protection generally can and should be understood to be seeking such protection and therefore treated as an applicant.
- A dependant has protection from refoulement pending the determination of the asylum application, so that until the request for international protection is determined by the Secretary of State a return order in the 1980 Hague Convention proceedings cannot be implemented.
- An application for asylum is pending and will not have been determined until the conclusion of the appeal process.
- An in-country appeal acts as a bar to the implementation of a return order in 1980 Hague Convention proceedings. Due to the time taken by the in-country appeal process this bar is likely to have a devastating impact on 1980 Hague Convention proceedings. The Supreme Court suggest that this impact should urgently be addressed by consideration being given as to a legislative solution.
- An out-of-country appeal does not act as a bar to the implementation of a return order in 1980 Hague Convention proceedings. If an out-of-country appeal is pending, the implementation of a return order is consistent with the Procedures Directive and with domestic legislation.
- The court can consider the merits of the 1980 Hague Convention proceedings even if the factual issues overlap with the asylum claims, so long as the prohibition on determining the claim for international protection is not infringed.
- The proposition “the High Court should be slow to stay an application prior to any determination” is entirely consistent with the aims and objectives of the 1980 Hague Convention including the obligations of expedition and priority. Also, it has the benefit of making available to the Secretary of State a reasoned High Court decision on the evidence available to it, and tested to an extent by an adversarial process, of an application for summary return.
- The Secretary of State has sole responsibility for both examining and determining claims for international protection.
- The 1980 Hague Convention proceedings are separate from the asylum process but the two regimes can operate “hand in hand.”
A number of practical points, to ensure the continued good working of the 1980 Hague Convention, were also contemplated by the Supreme Court:
- As soon as it is appreciated that there are related 1980 Hague Convention proceedings and asylum proceedings it will generally be desirable that the Secretary of State be requested to intervene in the 1980 Hague Convention proceedings.
- Ensuring that there is liaison and a clear line of communication between the courts and the Home Office.
- Joining the child as a party to the 1980 Hague Convention proceedings with representation.
- Directing that the papers (that have by that stage been provided to the Secretary of State in relation to the asylum application) be disclosed to the child’s representative.
- The court endorsed the steps taken by the Home Office post-hearing towards establishing a specialist asylum team to which this small group of cases would be assigned as soon as it is appreciated that there is an overlap with 1980 Hague Convention proceedings.
- The documents in the 1980 Hague Convention proceedings should ordinarily be made available to the Secretary of State.
- The court should give early consideration to the question as to whether the asylum documents should be disclosed in the 1980 Hague Convention proceedings.
- It is for the High Court to determine it’s own procedures for determining these cases, a number of problem areas are set out in Annex 2 of the judgment.
- In cases linked to 1980 Hague Convention proceedings consideration should be given to ensuring that any asylum appeal or any asylum judicial review will normally be assigned, in England and Wales and Northern Ireland, to a Family Division High Court judge (though not the same judge with conduct of the 1980 Hague Convention proceedings).
- It is desirable that the High Court should have oversight over and be in a position to co-ordinate both proceedings until both have been concluded. For instance, if the Secretary of State refuses a child refugee status and if the child appeals to the First-tier Tribunal (“FtT”) then it will be a matter for the High Court judge to bring the matter urgently to the attention of the Senior President of Tribunals and of the Lord Chief Justice requesting that a Family Division High Court judge acts in the FtT.
What does decision mean for international child abduction?
The Supreme Court recognised that the delay caused by the in-country appeal process is likely to have a devastating effect on the 1980 Hague process in which, at its heart, is the requirement for promptness and expedition.
In its judgment, the Supreme Court urge Parliament to consider a legislative solution to this impasse but even in the event that this is considered and/or prioritised, there is likely to be a lengthy wait before any legislative solution emerges (if it indeed does).
The full judgment can be read here.