G v G (A Child: Child Abduction) [2020] EWCA Civ 1185
The Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) allowed the appeal in a case concerning the interplay between obligations of the state under the 1980 Hague Convention, the 1951 Geneva Convention and relevant European Directives.
As set out in paragraph 1 of the judgment, the aim of the Hague Convention is to expeditiously ‘return a wrongfully removed or retained child to his home jurisdiction’ which is in apparent tension with the 1951 Geneva Convention in that that states refugees ‘should not be refouled (i.e. expelled or returned to a country where they may be persecuted)’.
The case concerned a child, G, who was born in 2012 in South Africa. Before a child is permitted to leave the jurisdiction, full written consent is required of all those with full parental responsibility. G’s father did not want her to come to the UK. However, G entered the UK on 2 March 2020 and an application for asylum was made “by or on behalf of” G and her mother.
G’s father made an application to the South African Central Authority for the return of G under the 1980 Hague Convention. The request was issued in the Family Division of the High Court on 14 April 2020.
In a statement of 2 June 2020, G’s mother said that she has always had feelings for women. However, she had been brought up to believe that homosexuality was a sin. As a result of telling friends about her feelings for women she had been threatened by members of her family.
In the High Court, Lieven J considered the determination of the 1980 Hague Convention application should be stayed until G’s asylum claim was determined.
By the time the case reached the Court of Appeal it had transpired that, contrary to the facts as Lieven J had been given them, no independent application for asylum had been made by or on behalf of G. Nevertheless, the Court of Appeal found that there was “no bar to the determination of the 1980 Hague Convention application before her; but there would have been a bar to the implementation of any return order made” [173].