Vardags Family Law Essay competition 2023/24 | Holly Hickman

Holly Hickman - Inns of Court College of Advocacy ("ICCA"), London

When Conventions Collide: applications under the 1980 Hague Convention and the 1951 Refugee Convention.

Cases involving international families are complex, often involve opposing interests and engage conflicting statutory regimes. This essay will address the issue of competing asylum claims and return applications made under the 1980 Hague Convention, with a specific focus on two cases which explore the interplay of jurisdictions: G v G [2021] UKSC 9 and Re R (A Child: Asylum and 1980 Hague Convention Application) [2022] EWCA Civ 188. Hague proceedings are significant in and of themselves but when competing Conventions apply, there is an additional veneer of complexity. This is a pressing issue, not least of all because of the high number of return applications dealt with by the courts in England and Wales. A recent report showed that in 2021, courts in this jurisdiction received the second highest number of return order applications (261), second only to the USA (313).

At its core, the Hague Convention is a Treaty and in practice, a mechanism that provides an expeditious method to return a child who has been internationally abducted by a parent from one member State to another. Article 1 sets out the intention, namely:

“a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

The Convention is designed to protect children internationally from the harmful effects of wrongful removal or retention by providing a system of cooperation between Contracting Parties and a rapid procedure for the prompt return of the child to their State of habitual residence. By its own admission, the Convention is based on the principle that, “save in the circumstances provided by Articles 12, 13 and 20 of the Convention, the return of a wrongfully removed or retained child to the Contracting Party it simply requires the child be returned to the jurisdiction which is most appropriate to determine the issue of custody and access, namely the State of the child’s habitual residence. The requirements to be met by a parent seeking a return order are strict:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

1. the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
2. there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

A further defence is set out in Article 20 which provides that: “the return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”. Presently, there are 103 Contracting States⁹ from Fiji to the Republic of Moldova, to Russia and El Salvador. It is therefore a pivotal, global instrument to right the wrong of international child abduction and requires consistent application worldwide.

However, when one Convention enforces the return of a child from one State to another and another Convention provides a form of protection to an individual against return to a State, which takes priority? This conflict has been addressed recently in G v G and Re R. The former, a decision of the Supreme Court and the latter, a subsequent decision of the Court of Appeal. Importantly, whilst both cases have different factual backgrounds they both suggest that asylum applications – the Asylum Convention - takes precedence, notwithstanding the summary nature of Hague proceedings and the requirement for return orders to be made "forthwith" (Article 12). And whilst this appears to be a relatively new issue for the courts to grapple with, it is not isolated. Following the hand-down of Re R, Theis J gave judgment in R v G & Anor (Hague Convention and Asylum) (Rev1) [2022] EWHC 655.

In G v G, the child, “G” was born and raised in South Africa and had been habitually resident there all her life. Her Father was a national of an EU State but had permanent residence in South Africa and G’s Mother was a South African citizen who travelled with G to England in 2020. The Father issued an application for a return order in respect of G, which was opposed by the Mother on Article 13(b) and Article 13(2) grounds.

Crucially, the Mother on arrival in the UK made an application for asylum for herself, and it was believed at the time, for G. Proceedings came before the High Court to determine the Father’s application for G’s return, but were stayed pending the determination of the Asylum application. Lieven J held there would be no benefit to disclosure of the asylum documents into the Hague proceedings, but allowed the Father’s application for disclosure of the documents in the Hague proceedings to the Secretary of State on the basis that the documents might be of assistance when determining the asylum application. The Father appealed on four grounds and the Court of Appeal held that a child listed as a dependant on an asylum application has no protection from refoulement, but that if G had made an application in her own right, she could not be returned prior to the determination of her application. At paragraphs [153] – [161] of the judgment, the Court offered guidance for deciding whether to determine or stay Hague proceedings in circumstances where the child and/ or the taking parent have applied for or been granted refugee status. At [154], the Court held that as a general proposition “the High Court should be slow to stay an application prior to any determination” and listed six matters which require consideration [155]. Ultimately, the Court concluded that there was no bar to ordering G’s return to South Africa. The Mother then appealed to the Supreme Court on three grounds:

1. Can a child that is named as a dependant on a parent’s asylum application, but has not made a separate independent application for asylum, have protection from refoulement?
2. If so, does that protection from refoulement act as a bar (i) to the determination by the Family Division of the High Court of an application for a return order under the 1980 Hague Convention seeking the return of a child to the country of their habitual residence where that child has protection from refoulement, or (ii) to the making of a return order, or (iii) only to the implementation of the return order?
3. If there is no bar to the determination of an application under the 1980 Hague Convention, what approach should the Family Division take in relation to the task of deciding that application? In particular, was the Court of Appeal right to hold that the High Court should be slow to stay a 1980 Hague Convention application?

The Mother’s first ground of appeal succeeded (the second and third failed) and the judges reached nine pivotal conclusions. Perhaps the two most important are that “an in-country appeal acts as a bar to the implementation of a return order in 1980 Hague Convention proceedings” [152] and that “the 1980

Hague Convention proceedings are separate from the asylum process but the two regimes can operate “hand in hand” [164]. Critically, the Supreme Court recognised that the delay caused by an in-country appeal process is likely to have a devastating effect on the 1980 Hague process which, at its heart, requires promptness and expedition (Article 11), though it stopped short of addressing the pragmatic effect on Hague proceedings.

In Re R, the Father appealed a decision of Roberts J which dismissed his application under the 1980 Hague Convention for the summary return of the child – then aged 12 – to Ukraine. The Father made two separate applications for return orders following the Mother’s wrongful retention (in the first instance in 2018) and wrongful removal and retention (in the second instance from 2018 – 2021). Similar to G v G, the Mother in Re R opposed the Father’s application on Article 13(b) grounds initially – although Theis J ordered the child’s return which happened in June 2019 – and then on three grounds in the second set of proceedings, including: (1) that the child was not habitually resident in Ukraine at the date of his removal; (2) Article 13(b); and (3) the child’s objections. The Father’s application was considered by a Deputy High Court Judge, who made the return order, although it was not adhered to and over the course of a year and half between July 2020 and November 2021, the Mother proceeded to sidestep the orders of the High Court [11] – [31]. The situation was complicated by the Mother’s subsequent application for asylum following the already extant Hague proceedings and return orders of the High Court [30].

Akin to G v G, in Re R the Father applied for disclosure of the child’s asylum application and all accompanying documents, including the records of any asylum interviews and witness statements [34]. The application was opposed by the Mother and rejected by the Court at first instance [58] on the basis that “the application for disclosure of the asylum material within the 1980 Convention for the purposes of evidence-gathering with a view to launching a judicial review of the decision to grant M asylum is little more than a ’fishing expedition’ which this court should not authorise.”

In G v G, Lord Stephens identified the need for the 1951 Refugee Convention and the 1980 Convention "to operate hand in hand" [134] and for "practical steps [to be taken] … to co-ordinate both sets of proceedings" [6]. However, in that case the Mother had made an asylum claim immediately on arrival in this country in March 2020, before the Father issued his application under the Hague Convention in April 2020. The two applications were therefore proceeding in parallel. Conversely, in Re R the Father had obtained two orders under the 1980 Convention requiring the child’s return to Ukraine before any asylum claim was made and the Mother. The Mother offered no reason for the delayed claim either in documents or submissions before the Court, yet the judgment noted that the “basis of the child’s application for asylum was anchored to the Article 13(b) defence which the Mother ran in the proceedings” [89]. At [90] of the Court of Appeal’s decision, Moylan LJ referred to Lord Stephens’ observations in G v G and highlighted that “there is a heavy obligation on parties to proceedings under the 1980 Convention to advance all the facts which are material to the proper determination of the application”, and that “it would be an abuse for a party deliberately to keep facts, so to speak, in reserve to be used for other purposes such as a later asylum claim.” Hence, “G v G proceeded on the basis that an asylum claim and an application under the 1980 Convention would be expected to be running in parallel and that the material in each would be likely to be relevant to the determination of the other.” At [101], Moylan LJ further noted that: “The timing of the asylum claim in this case has frustrated one of the principal objectives identified … in G v G, at [5], namely, to seek to ensure that the 1980 Convention and the Refugee Convention "can operate hand in hand in order to achieve the objectives of each of them without frustrating the objectives of either of them.” It is worth noting that the time of the appeal, the Mother was in breach of five return orders and therefore in contempt of court.

Although neither case explicitly prioritises the asylum process over 1980 Hague Convention, both decisions are somewhat at odds with the international approach to matters which involve this interplay of jurisdictions as, for example, in the USA and Canada, where 1980 Hague Convention applications are openly prioritised. Generally, the Canadian courts have refused to suspend Hague proceedings during the refugee claim process - even when requested by the Minister of Citizenship and Immigration - as it would be inconsistent with the principles of fundamental justice because the rights of one of the custodial parents would be ignored, and on the basis of the paramountcy of the Hague Convention and the spirit which infuses it. In one case, the Canadian court ordered the return of the children, even when such return would prevent the abducting parent from attending a hearing in their refugee claim. Courts in Canada have recognized that a judgment under the Hague Convention ordering the return of the children prior to a hearing on their refugee status could be an interference with the rights of the children, but in cases of conflict, the Hague Convention should take precedence. In 2012, a subsequent decision of the Ontario Court of Justice highlighted the Canadian no-nonsense approach to Hague proceedings, concluding that the purpose of the Hague Convention would be defeated if applications for the return of abducted children were not dealt with expeditiously.

In the American case, Garcia Meza v. Agrella Diaz, 2015 U.S. Dist. LEXIS 117869, the District Court for the Western District of Washington noted that it was the Mother’s choice to claim asylum and the issue of whether she decided to stay in the US or go back to Venezuela did not impact the decision concerning the return of the children to Venezuela:

“The Court is aware of Dr. Agrella’s pending asylum application, but has not attempted to account for this additional complexity. Whether Dr. Agrella chooses to remain in the United States so as not to jeopardize her application is entirely her choice, and whether the application will be granted or denied falls within the purview of the executive branch. Because enforcement of the Convention cannot be voided or forestalled by the initiation of parallel administrative proceedings, the pending asylum application has had no impact on the outcome of Dr. Garcia’s petition.” (My emphasis).

The approach of US and Canadian courts is underpinned by an intention to discourage international child abduction and/ or promptly deal with Hague proceedings so that the child can be returned to its State of habitual residence, where an appropriate court is then able to determine matters of custody and access.

R v G concluded with the court making a return order, notwithstanding the Mother’s asylum applications for herself and X. Akin to Re R, the Mother made the applications on/ around the date of the final hearing in the Hague proceedings and failed to comply with the extant return order. Although all three domestic cases addressed in this essay have considered the tension between the principle of non- refoulement and the obligations under the 1980 Hague Convention, as recognised by Theis J at [92] in R v G, “if greater experience demonstrates or suggests that the respective processes are being manipulated by one party, it may well be that the court will have to revisit the guidance given in G v G and determine whether it requires adjustment to seek to prevent such manipulation.” This concern appears to have been foreseen by the Canadian and US courts, thus their approach – the prioritisation of Hague proceedings in both letter and spirit - might be pertinent for the courts of this jurisdiction to adopt, particularly in circumstances where there are – what might be considered – tactical applications, as in the case of Re R.

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Bibliography:

1. Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention”, Prel. Doc. No 19A of September 2023, published in October 2023):
2. 1980 Hague Convention:
3. G v G [2021] UKSC 9
4. Re R (A Child: Asylum and 1980 Hague Convention Application) [2022] EWCA Civ 188
5. R v G & Anor (Hague Convention and Asylum) (Rev1) [2022] EWHC 655
6. VR v YD & Anor [2021] EWHC 2642 (Fam)
7. Kovacs v. Kovacs, 2002 CanLII 49485 (Ont. S.C.J.)
8. G. (J.E.B.) v. C. (A.D.), REJB 2003-48967 (Que.S.C.); Droit de la famille-082563, 2008 QCCS 4762 (Que. S.C.)
9. G.B. v. V.M., 2012 ONCJ 745 (Ont. C.J.); R.G. et K.G. (N.), 2019 NBBR 46 (CanLII)