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The parents lived together in South Africa and had a child in 2012. The child had always been habitually resident in South Africa. The parents separated in 2014. The child lived with the mother but had regular contact with the father.

The mother identifies as lesbian. She alleged that after separating from the respondent and coming out, her family subjected her to death threats and violence.

In March 2020 the mother wrongfully removed the child and took her to England, in breach of the father’s rights of custody under South African law. On her arrival in England she applied for asylum on the basis of her fear of persecution by her family. She listed the child as a dependant on her asylum application. The child did not make an asylum application in her own right.

The father made an application for return under the 1980 Hague Convention. The mother opposed the father’s application, relying upon Article 13(1)(b) and 13(2).

The Court considered the relationship between the provisions protecting refugees from refoulement, that is expulsion or return to a country where they may be persecuted, and the requirement to return a child under the 1980 Hague Convention to the country from which the child or the child’s parent has sought refuge.

The Court refused to order the return of the child until the mother's asylum application had been determined.

Non-Convention Issues

A child named as a dependant on the parent's asylum application and who has not made a separate request for international protection generally can and should be understood to be seeking such protection and therefore treated as an applicant.

An applicant has protection from refoulement pending the determination of their asylum application, so that until the request for international protection is determined by the Secretary of State a return order in the 1980 Hague Convention proceedings cannot be implemented. The two Conventions are not independent of each other but rather must operate hand in hand.

The High Court should be slow to stay 1980 Convention proceedings. While the High Court can decide whether to make a return order under the 1980 Convention, the return order cannot be implemented until the Home Secretary has determined the asylum claim. A reasoned judgment on whether the child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist the prompt determination of the asylum claim by the Home Secretary. The High Court has power to set aside its decision if the asylum claim is successful.

An asylum claim is not "determined" until the conclusion of any appeal. Asylum law distinguishes between asylum seekers who have the right to appeal from within the UK, and those who must appeal from outside the UK. The implementation of a return order in 1980 HC proceedings in respect of a child with a pending in-country appeal would render the appeal process ineffective. A pending in-country appeal must therefore bar the implementation of a return order. Due to the time taken for in-country appeals this could have a devastating impact on 1980 Convention proceedings. The court recommended that a legislative solution be made for this problem.

An out-of-country appeal would not act as a bar to the implementation of a return order in 1980 Convention proceedings.

Grave Risk - Art. 13(1)(b)

There is no impediment to the High Court, in considering whether a defence under article 13(1)(b) of the 1980 Hague Convention is made out, to making factual findings in relation to the constituent elements of the risk of refoulement.