Family Law Hub

G (A Child: Child Abduction) [2020] EWCA Civ 1185

The mother had brought the daughter to England without the father's knowledge. She alleged that he had racially and sexually abused her during their marriage; they had separated in 2014 and she had subsequently come out to friends as a lesbian. On arrival in the UK, she had applied for asylum on the basis of the fear of persecution from her family as a result of her sexual orientation, from which the South African authorities had been unwilling or unable to protect her. The father's application under the 1980 Hague Convention for his daughter to be returned to South Africa had been stayed, pending the determination of the mother's asylum claim. This was an appeal against that stay, on four grounds, including that the judge had erred in considering any form of refugee status to be an absolute bar to a return under the 1980 Hague Convention. The Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) noted that the case raised issues regarding the apparent tension between the objective of the Hague Convention 1980, to return a wrongfully removed or retained child expeditiously to their home jurisdiction, and the principle of the 1951 Geneva Convention, that refugees should not be returned to a country where they might be persecuted, as well as issues as to the rights of children in such situations. In their view, children with refugee status could not be returned under the 1980 Hague Convention to the country from which they had been given refuge. However, there was no bar where, as transpired to be the situation in this case, the child had been named as a dependant in an application for asylum by a parent, but had made no independent asylum claim. Even where a child had been granted or had applied for refugee status, the High Court was not prevented from determining an application or making a return order, though implementation might need to be stayed. The appeal was allowed.

Published: 25/09/2020


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