October 26, 2020
Amna Khaliq, a Partner in the family department, reports on the interplay between obligations for the state under the 1980 Hague Convention and under immigration law including the 1951 Geneva Convention.In this case the Appeal Court considered the state’s obligation in respect of child abduction under the 1980 Hague Convention and Immigration Law under the 1951 Geneva Convention.The main issue in this case centred around the attempts to promptly return a child to their home jurisdiction, whilst avoiding expelling or returning a refugee to the country where they may face persecution.
In this particular case the mother had removed the child from South Africa to the United Kingdom. The father applied under the Hague Convention for the child’s immediate return. The mother had claimed asylum on the basis that she was a lesbian and she had received threats from her family.The Secretary of State for the Home Office erroneously believed the child had applied for asylum and Mrs Justice Lieven stayed the father’s application pending a determination in respect of the mother’s asylum claim which included the child. The father appealed this decision.The Court of Appeal considered five issues:
The father’s appeal was allowed, the Court of Appeal noted that this case raised tension between the objective of the Hague Convention 1980 to return a wrongfully removed or retained child expeditiously to their home country and the principle of the 1951 Geneva Convention, that refugees should not be returned under the Hague Convention to countries where they have been given refuge. In their view even if a child had been granted or applied for refugee status, the High Court was not prevented from considering an application or making a return order, however the implementation of the return order may be stayed.
Our Amna Khaliq is a member of the International Child Abduction and International Contact Unit and regularly represents clients at the High Court in respect of international abduction and contact matters. For an appointment with Amna or If you require advice or assistance with your case contact Mavis on 020 8885 7986
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.