G v G [2021] UKSC 9

A mother wrongfully removed her child from South Africa to England and claimed asylum, naming the child as a dependant. The Supreme Court considered the interplay between the 1980 Hague Convention on child abduction and asylum law, holding that a child named as a dependant on a parent's asylum application can be understood to be an applicant themselves, entitled to protection from refoulement pending determination.

Facts

The appellant mother, a South African citizen, wrongfully removed her eight-year-old daughter G from South Africa to England in March 2020, in breach of the father’s custody rights under South African law. Upon arrival in England, the mother applied for asylum based on alleged persecution from her family due to her sexual orientation, naming G as a dependant on her application. The father sought G’s return under the 1980 Hague Convention on International Child Abduction, incorporated into UK law by the Child Abduction and Custody Act 1985. The mother opposed the return order, relying on articles 13(b) (grave risk to the child) and 13(2) (child’s own objections) of the 1980 Hague Convention.

Procedural History

Lieven J in the High Court stayed the Hague Convention proceedings pending determination of the asylum claims. The Court of Appeal lifted the stay, holding that where a child is named as a dependant (rather than making a separate application), a return order could be both made and implemented before the asylum determination. The mother appealed to the Supreme Court.

Issues

The key issues were: (1) whether a child named as a dependant on a parent’s asylum application can be understood as making an application for asylum themselves; (2) if so, whether the child is protected from refoulement pending determination; (3) when an asylum application is determined; (4) at what point remedies against refusal no longer have suspensive effect; and (5) whether the High Court should stay Hague Convention proceedings pending asylum determination.

Judgment

The Supreme Court (Lord Stephens delivering judgment, with Lords Lloyd-Jones, Hamblen, Leggatt and Burrows agreeing) allowed the appeal on the first ground but dismissed the appeal on the second and third grounds. The Court held that a child named as a dependant on a parent’s asylum application can and should objectively be understood as making a request for international protection themselves. Lord Stephens stated:

I consider that a request for international protection made by a principal applicant naming a child as a dependant is also an application by the child, if objectively it can be understood as such.

The Court held that such a child is entitled to protection from refoulement under Article 7 of the Procedures Directive pending the Secretary of State’s determination, meaning a return order cannot be implemented until the asylum claim is decided. However, the Court confirmed that the bar only applies to implementation, not to the determination of the Hague Convention application or the making of a return order. The Court endorsed the Court of Appeal’s view that the High Court should be slow to stay Hague Convention proceedings.

Key Principles

The Court emphasised the need for the 1951 Geneva Convention and 1980 Hague Convention to operate hand in hand. Lord Stephens noted:

The central questions are whether these two Conventions occupy different canvasses 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 also stressed the importance of expedition, stating that the United Kingdom has an international and domestic legal obligation to determine Hague Convention proceedings promptly, and that related asylum processes should equally be expedited.

Implications

This judgment clarifies the relationship between child abduction proceedings and asylum law in the United Kingdom. It establishes that children named as dependants on parents’ asylum applications are protected from refoulement pending determination, preventing implementation of return orders until asylum claims are decided. The case provides important guidance on co-ordination between the Family Division and the Home Office, recommending practical measures including early intervention by the Secretary of State in Hague Convention proceedings, expedition of related asylum claims, and appropriate disclosure between proceedings. The decision protects refugee children from premature return while also seeking to prevent tactical asylum claims from frustrating the objectives of the 1980 Hague Convention.

Verdict: Appeal allowed on the first ground (child named as dependant is protected from refoulement pending asylum determination, barring implementation of return order); appeal dismissed on second and third grounds (bar applies only to implementation, not determination or making of return order; Court of Appeal’s guidance on stays upheld). Case remitted to Family Division for further consideration.

Source: G v G [2021] UKSC 9