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Case Name
In Re K (A Child) (Stay of Return Order: Asylum Application) (Contact to a Parent in Self- Isolation) [2020] EWHC 2394 (Fam)
INCADAT reference
HC/E/UKe 1562
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice Family Division
Appellate Court
Mr Darren Howe QC
States involved
RUSSIAN FEDERATION
UNITED KINGDOM - ENGLAND AND WALES
Decision
4 September 2020
Final
Non-Convention Issues
Return refused
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E v E (Secretary of State for the Home Department intervening) [2017] EWHC 2165, [2018] Fam 24.
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SUMMARY
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Facts
The father of a 9-year old boy, habitually resident in Russia, brought the child to the UK.
The mother made an application for return under the 1980 Convention and, in July 2020, an order was made for the return of the child to Russia.
The father then made an application for asylum on behalf of the child. He accepted that this application was “tactical” though he also submitted that it was justified.
Ruling
The return of the child was barred as a consequence of his pending asylum appeal.
Grounds
Non-Convention Issues
The court held that return of the child was barred as the commencement of an asylum application by, or on behalf of, a child prohibits the enforcement of a return order made under the Hague Convention 1980.
This was the case even if the asylum application were a “sham” as there is no exception available even if the court concludes the asylum application is simply a vehicle to avoid the return order.
The Court accepted that this conclusion provides an abducting parent with an opportunity to delay the return of a child until a determination is made by the Secretary of State on any asylum claim issued.