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M, a 12-year-old Ukrainian child, was born from a brief relationship between two Ukrainian citizens. M had regular contact with his father until mid-2016 when his mother began a relationship with a British citizen whom she married in 2017. In 2018, the mother obtained a spousal via and applied in Ukraine for permission to relocate M to the UK. The Ukrainian court granted interim permission for M to move to the UK for six months; however, the mother did not return as agreed, leading the father to file a claim under the 1980 Hague Convention in May 2019. 

In May 2019, Theis J ordered M's return to Ukraine, rejecting the mother's defence under art.13(1)(b) and art.13(2). The mother and M returned to Ukraine; however, in October 2019, the mother and M returned to the UK clandestinely. The father made a second Hague application which resulted in another return order in July 2020. The mother's appeals and subsequent applications to stay or set aside the orders were dismissed. 

On 26 October 2020, the mother applied for a stay of 1980 Hague Convention proceeding based on M's asylum claim, which she had made on 20 October. The Home Office recorded receipt of M's asylum application on 2 November. The father sought disclosure of the asylum documents on 22 January 2021. M and the Secretary of State for the Home Department ('SSHD') were joined to the proceedings in May 2021. On 28 May, M was granted asylum which inferred a finding that M was a refugee owing to a well-founded fear of being persecuted.

At the hearing listed to determine the father's disclosure application, the judge also had to determine whether to set aside the previous return order and, if so, how to determine the father's 1980 Convention application. The disclosure application was dismissed. The judge concluded that the grant of asylum prevented enforcing a summary return, rendering the 1980 Convention proceedings purposeless. The father appealed this.

The appeal against the order dismissing 1980 Hague Convention proceedings was allowed because the grant of asylum did not automatically nullify 1980 Convention proceedings. The case was remitted for an urgent case management hearing.

Non-Convention Issues

The father had obtained two return orders under the 1980 Convention before any asylum claim was filed. Although there are circumstances which explain why an asylum claim is made later (e.g. new risk of persecution), no such explanation is evident in this matter. It is unclear how the facts the mother used unsuccessfully to oppose the return orders under art.13(1)(b) could now form the basis of the successful asylum claim. Under the 1980 Convention, parties must present all relevant facts for proper application determination, and withholding information for a later asylum claim could constitute abuse of process. 

Normally, asylum and 1980 Convention claims would run concurrently to ensure all relevant material is shared and addressed. This did not occur in this case. The appellate court noted that a lack of coherence between abduction and asylum proceedings could indicate manipulation. The court cited the guidance offered in G v G [2021] UKSC 9. 

The added asylum matters made the judge's task more difficult as she was waylaid by procedural issues relating to the asylum material.  Nonetheless, the judge wrongly assumed that asylum automatically nullifies return orders and the need for further 1980 Convention proceedings. There is no such legal principle; an application to set aside a return order requires re-examination of the substantive application, not automatic dismissal (Re B (a child) [2021] 1 WLR 517). This was confirmed in case law, culminating in G v G. The judge should have assessed whether disclosure of the asylum material was necessary for a fair determination of the father's application. 

'[T]he fact that the proper determination of an application under the 1980 Convention might enable the left behind parent to request the SSHD to reconsider or review the grant of asylum does not make such a determination or the pursuit of such a determination improper or illegitimate' [98]. The presence of 1980 Convention proceedings does not damage the asylum process. The father has a right to a fair hearing (Article 6 ECHR) and thereby disclosure of the asylum material to ensure the 1980 Convention application is properly assessed. 

The appeal was allowed and the 1980 Convention application remitted.

Author: Daisy Holland (Judicial Assistant)