Abduction: Hague Convention v Geneva Convention

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

Amna Khaliq, a Partner in the family department, reports on the interplay between obligations for the state under the 1980 Hague Convention and under immigration law including the 1951 Geneva Convention.In this case the Appeal Court considered the state’s obligation in respect of child abduction under the 1980 Hague Convention and Immigration Law under the 1951 Geneva Convention.The main issue in this case centred around the attempts to promptly return a child to their home jurisdiction, whilst avoiding expelling or returning a refugee to the country where they may face persecution.

In this particular case the mother had removed the child from South Africa to the United Kingdom. The father applied under the Hague Convention for the child’s immediate return.  The mother had claimed asylum on the basis that she was a lesbian and she had received threats from her family.The Secretary of State for the Home Office erroneously believed the child had applied for asylum and Mrs Justice Lieven stayed the father’s application pending a determination in respect of the mother’s asylum claim which included the child. The father appealed this decision.The Court of Appeal considered five issues:

1. When applying 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?
2. If so, does it act as a bar to the determination of the application or to the making of a return order or only to the implementation of any return order?
3. 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
4. What part, if any, should the child play in the application
5. 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 father’s appeal was allowed, the Court of Appeal noted that this case raised tension between the objective of the Hague Convention 1980 to return a wrongfully removed or retained child expeditiously to their home country and the principle of the 1951 Geneva Convention, that refugees should not be returned under the Hague Convention to countries where they have been given refuge. In their view even if a child had been granted or applied for refugee status, the High Court was not prevented from considering an application or making a return order, however the implementation of the return order may be stayed.

Our Amna Khaliq is a member of the International Child Abduction and International Contact Unit and regularly represents clients at the High Court in respect of international abduction and contact matters. For an appointment with Amna or If you require advice or assistance with your case contact Mavis on 020 8885 7986