On 19 March 2021, the Supreme Court handed down an important judgment that provided authoritative guidance on how the UK family courts should approach Hague Convention child-abduction proceedings, where the child is a dependent named in an asylum claim of the taking parent who is seeking asylum. Southall Black Sisters (SBS) was one of six interveners in this significant case. We instructed Janet Broadley of Goodman Ray Solicitors and counsels – Dr S Chelvan and Alex Verdan QC and Charlotte Baker from 33 Bedford Row and 4 Paper Buildings respectively. The case raised important legal questions as to the interplay between the Hague Convention that enables the prompt return of abducted children to their country of residence, and the 1951 Geneva (Refugee) Convention which protects those entitled to asylum from being returned to the country from which they seek refuge. Our intervention followed an earlier intervention in the Court of Appeal EWCA Civ.1185].
The case concerned G (the Appellant mother), a South African national who on 2 March 2020, wrongly removed her eight-year-old daughter ‘G’ from South Africa. On arrival in the UK, G claimed asylum based on her fear of domestic abuse and persecution in South Africa as a lesbian. She also named her daughter as a dependent on her asylum claim. In G’s asylum screening interview and subsequent statement, she highlighted additional risks to her daughter from her family due to acts of violence towards her as a lesbian.
G (the Respondent father), a dual South African and EU Member State national, had in 2018, following his divorce from the mother, been granted the South African equivalent of a child arrangements order. This gave him full shared parental rights and responsibilities in relation to his daughter who lived with her mother, but had extensive contact with him.
On 11 March 2020, the father, having been informed by the mother through text messages that she had left South Africa with their daughter, applied for the return of the daughter pursuant to the 1980 Hague Convention. The application was issued on 14 April 2020 in the Family Division of the High Court and led to a disclosure and location order being served on the mother the next day, with a return date fixed for 15 May 2020.
Pursuant to the disclosure order, the Secretary for State for the Home Department (SSHD) confirmed that the mother had made an asylum application on 2 March 2020 on behalf of herself and her daughter. The 1980 Hague Convention return date hearing was subsequently adjourned in order for the asylum application to be determined. But amongst the questions before the Supreme Court were whether the child who did not have a separate application for asylum could be returned to South Africa as required under the Hague Convention, and whether the asylum process served as a bar either to the making of the Hague Order or its enforcement.
We intervened to support the proposition that as a matter of law, a child named as a dependent on a parent’s asylum claim must be afforded the same protection from refoulement (forcibly returning a refugee to a country where he or she is likely to face persecution) as the principal applicant – and that every asylum-seeking child should be afforded refugee status, even if the application arises only because the child is named as a dependent on their parent’s application. In doing so, we drew on our considerable experience of supporting migrant women subject to gender-based abuse, including those seeking asylum or settlement in the UK – and protection from harm based on their gender, sexuality, religious and political identity.
We sought to highlight our concerns about the impact of the Hague Convention on women and children who need to claim asylum due to their fear of gender related persecution. Our experience shows that Hague Convention proceedings are often brought by abusers against women who have fled abuse in order to continue to abuse them. More generally, we have found that abusers increasingly use the law as a weapon of coercive control, especially during and post separation. Women are particularly subject to repeated litigation following separation, precisely so that their abusers can maintain control and reduce them to a state of abject destitution, humiliation and submission. The entire process has the effect of disempowering women and children, and in some cases of keeping women and children in abuse and marital captivity. Our options for protecting women are extremely limited in circumstances where the women are ordered to return to countries that have signed up to the Hague Convention, even though they have suffered abuse and claimed asylum. All too often, such women are viewed as the offending or abducting party rather than as a victim of abuse and serious harm.
For all the above reasons, we welcome the Supreme Court judgment which makes clear that where a left-behind parent applies to the UK Courts for a return of their child/children under the Hague Convention, an asylum claim by the taking parent is an absolute bar to the enforcement of a Hague return order, until the claim has been either decided by the SSHD, or until all immigration appeal rights have been exhausted. This does not prevent the determination of the Hague return order, but does bar any enforcement of the order. In the course of the judgment, the Supreme Court also handed down useful guidance which our lawyers helped to shape on how to manage cases involving the interplay between the Hague Convention and the Refugee Convention.