G v G [2021] UKSC 9: case analysis

Will Tyzack (led by Edward Devereux QC and Zane Malik QC) appeared on behalf of the respondent father in this Supreme Court case about the interface between international child abduction and asylum law.

G was an only child of divorced parents. Until February 2020, her parents lived near one other in South Africa. G’s mother began to experience persecution from her family in South Africa after telling friends she was lesbian. She wrongfully removed G from South Africa, fled to England and made an application for asylum. G’s father made an application for her return under the 1980 Hague Convention. At first instance, Lieven J held that the father’s application for a return order should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that, in the circumstances, the High Court was not barred from determining the father’s application for a return order, nor was it barred from making such an order. The mother then appealed to the Supreme Court.

The issues for the Supreme Court to determine were:

  1. Does a child named as a dependent on a parent’s asylum application have any protection from refoulement?
  2. Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement?
  3. Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?

The Supreme Court determined, in summary, that:

  1. A dependant has protection from refoulement pending the determination of the asylum application.
  2. 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. 
  3. The proposition “the High Court should be slow to stay an application prior to any determination” is consistent with the aims and objectives of the 1980 Hague Convention including the obligations of expedition and priority. The 1980 Hague Convention proceedings are separate from the asylum process but the two regimes can operate “hand in hand.” The court can consider the merits of the 1980 Hague Convention proceedings even if the factual issues overlap with the asylum claims, so long as the prohibition on determining the claim for international protection is not infringed.

Bailii report: https://www.bailii.org/uk/cases/UKSC/2021/9.html

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