AFFAIRE

Télécharger le texte complet EN

Nom de l'affaire

G v G [2021] UKSC 9

Référence INCADAT

HC/E/UKe 1509

Juridiction

Pays

Royaume-Uni - Angleterre et Pays de Galles

Degré

Instance Suprême

États concernés

État requérant

Afrique du Sud

État requis

Royaume-Uni - Angleterre et Pays de Galles

Décision

Date

19 March 2021

Statut

Définitif

Motifs

Questions ne relevant pas de la Convention | Risque grave - art. 13(1)(b)

Décision

Recours accueilli, retour refusé

Article(s) de la Convention visé(s)

2 13(1)(b) 13(2)

Article(s) de la Convention visé(s) par le dispositif

-

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

RÉSUMÉ

Résumé disponible en EN

Facts

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.

Ruling

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

Grounds

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.

There cannot be an effective remedy under an in-country appeal process if in the meantime a child has in fact been returned under the 1980 Hague Convention to the country from which they have sought refuge. Accordingly, an in-country appeal acts as a bar to the implementation of a return order in 1980 Hague Convention proceedings. Due to the time taken for in-country appeals this could have a devastating impact on 1980 Hague 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 Hague 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.