Family Law Hub

Immigration

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  • 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. Judgment, 25/09/2020, free
  • The father in child abduction proceedings had applied for directions to implement a return order. The mother had brought the children from Texas to England in 2017, and had been ordered to return them. The Court of Appeal had held that it would be intolerable to return the children to the USA without their mother, but her application for a humanitarian parole visa had been rejected by the American immigration service. Knowles J was unable to vary the Court of Appeal's order, and so did not have the jurisdiction to entertain the father's application. The parties would have to consider whether to apply to the Court of Appeal for reconsideration of its order. However, she urged them to consider a child-focused, consensual end to the litigation, before further hearings eroded whatever goodwill remained. Judgment, 03/01/2020, free
  • In brief: An unusual case involving a refusal to recognise a foreign order at first instance. The mother (“M”) had already successfully overturned a return order (returning the child to Russia) on the grounds that there were genuine fears she would be arrested on her return due to her political views. The father (“F”) successfully applied in Russia for an order that the child should no longer live with M and he sought to have this registered in England. The lower court’s decision to refuse to register the order was upheld on appeal; not only were F’s criticisms of the lower court rejected but M’s position that it would be contrary to the child’s best interests to return her to Russia was accepted. Judgment, 10/08/2018, free

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