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G (Appellant) v G (Respondent)

G (Appellant) v G (Respondent)

Case [2021] UKSC 9

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THE COURT ORDERED that no one shall publish or reveal the name or address of the child who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the child or of any member of her family in connection with these proceedings.

Hilary Term
[2021] UKSC 9

On appeal from: [2020] EWCA Civ 1185

Appellant Respondent

Henry Setright QC Edward Devereux QC

Michael Gration Zane Malik QC

Jason Pobjoy William Tyzack

Emmeline Plews

(Instructed by A & N Care (Instructed by Dawson Cornwell

Solicitors (Sheffield)) (London))

1st Intervener
Alan Payne QC
John Goss
(Instructed by The Government

Legal Department)

2nd Intervener

James Turner QC
Mehvish Chaudhry

Paige Campbell
(Instructed by Bindmans LLP

(London))

3rd Intervener
Richard Harrison QC
Jennifer Perrins
Mark Smith
(Instructed by Brethertons LLP

(Rugby))

4th Intervener
Alex Verdan QC
Dr S Chelvan
Charlotte Baker
(Instructed by Goodman Ray LLP

(London))

5th Intervener

Raza Husain QC
Malcolm Birdling

Gayatri Sarathy
(Instructed by Baker & McKenzie

LLP (London))

6th Intervener
Mark Twomey QC

Sarah Tyler

Alexander Laing
(Instructed by Farrer & Co
LLP (London))

Interveners:

(1) Secretary of State for the Home Department
(2) International Centre for Family Law, Policy and Practice
(3)

Reunite International Child Abduction Centre written submissions only
(4)

Southall Black Sisters written submissions only
(5) United Nations High Commissioner for Refugees
(6)

International Academy of Family Lawyers written submissions only
LORD STEPHENS: (with whom Lord Lloyd-Jones, Lord Hamblen, Lord
Leggatt and Lord Burrows agree)
1. Introduction

1. This appeal is brought by the mother of an eight-year-old girl whom I anonymise as G. She was born in South Africa and has been habitually resident there throughout her life. On 2 March 2020 her mother wrongfully removed G from South Africa to England in breach of G’s father’s rights of custody under South African law. The father seeks an order returning G to South Africa under the Convention on the Civil Aspects of International Child Abduction concluded on 25 October 1980 (“the 1980 Hague Convention”) as incorporated by the Child Abduction and Custody Act 1985 (“the 1985 Act”). In opposing a return order, the mother relies upon two grounds, namely articles 13(b) (grave risk to the child) and 13(2) (child’s own objections) of the 1980 Hague Convention. So far that is a description of a standard 1980 Hague Convention case.
2. However, in this case the 1980 Hague Convention proceedings have been complicated by the fact that, on arrival in England, the mother made an application to the Secretary of State for the Home Department (“the Secretary of State”) for asylum, naming G as a dependant. That application meant that there were two different sets of proceedings: the 1980 Hague Convention proceedings being determined in the Family Division of the High Court and the asylum application which, on 3 February 2021, and after the hearing in this court, was determined by the Secretary of State. So, this appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading G (Appellant) v G (Respondent)

Details

AGLC: G (Appellant) v G (Respondent) [2021] UKSC 9
Case: [2021] UKSC 9
Decision Date

CaseChat Overview and Summary

G, an eight-year-old girl, was wrongfully removed from South Africa to England by her mother in breach of the father's rights of custody under South African law. The father seeks her return under the 1980 Hague Convention. The mother opposes the return, relying on two grounds: grave risk to the child and the child's own objections. The 1980 Hague Convention proceedings have been complicated by the mother's application for asylum, naming G as a dependant. This case raises important questions about the interplay between the 1980 Hague Convention and asylum law, including the Convention and Protocol relating to the Status of Refugees and relevant European Union Directives. The central question is whether these two Conventions occupy different canvases and, if not, how they can operate hand in hand in order to achieve the objectives of each of them without frustrating the objectives of either of them. The court was informed that annually there are approximately one hundred 1980 Hague Convention applications in England and Wales though no information was provided as to the number in which there was a related application for asylum. The court held that the aim of the 1980 Hague Convention is as much to deter people from wrongfully abducting children as it is to serve the best interests of the children who have been abducted. It is obvious that the aim of deterring people from wrongfully abducting children will not be achieved if asylum claims can have the effect of frustrating or, worse still, can be exploited by the taking parent to frustrate the 1980 Hague Convention. The court held that the Court of Appeal's clearly reasoned conclusion that "any bar applies only to implementation" cannot be faulted and was plainly right. This third ground of appeal therefore fails. However, the court allowed the appeal to the extent that a child named as a dependant on her parent's asylum request who can objectively be understood to have made a request for international protection has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented. The court maintained the order of the Court of Appeal setting aside the stay imposed by Lieven J and remitting the case to the Family Division for further consideration of the 1980 Hague Convention application.

Orders