When Can Refugee Children be Returned to Their Home Country Under the Hague Convention?

In the case of G (A Child : Child Abduction) [2020] EWCA Civ 1185, the Court of Appeal has confirmed that, where a child has been granted refugee status in their own right, or has their own pending asylum claim, they cannot be returned under the Hague Convention. When a child is a dependant on an asylum claim, however, they can be returned. Either way, the Family Court can make a decision on an application for a return order, or indeed make a return order, but the implementation of said order may need to be stayed. The case makes an interesting read for anyone interested in the interplay between child law and refugee law. Specifically, in the words of the Court of Appeal, it considers “the apparent tension between the objective of the former expeditiously to return a wrongfully removed or retained child to his home jurisdiction and the principle of the latter that refugees should not be refouled (i.e. expelled or returned to a country where they may be persecuted)” [paragraph 2].

G is about eight years old and grew up in South Africa. Her parents divorced in 2018 but continued to share parental responsibility. In March 2020, G’s mother took her to the UK, and claimed asylum, adding G as a dependant on her claim. G’s father made an application to the South African authorities for the return of G under the 1980 Hague Convention on child abduction. When considering G’s father’s application for the return of G, Mrs Justice Lieven of the Family Division of the High Court found that a decision could not be made until the Secretary of State had determined G’s asylum claim. Significantly, at the time Lieven J was under the impression that G had made her own asylum claim, rather than being a dependant on her mother’s claim. G’s father appealed against the Family Division’s order.

Read more: Freemovement, https://is.gd/Icwnj6