CD and EF (in the matter of AB (a minor)
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 02 June 2023 |
| Neutral Citation | [2023] NICA 37 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 37
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12159
ICOS No: 22/054903
Delivered: 02/06/2023
IN HIS MAJESTYS COURT OF APPEAL IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
FAMILY DIVISION
OFFICE OF CARE AND PROTECTION
___________
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
BETWEEN:
CD
and
EF
IN THE MATTER OF AB (A MINOR)
___________
Mr Lavery KC & Ms Rice (instructed by Bernard Campbell and Co Solicitors) for the
Appellant
Ms McGrenera KC & Ms Downey (instructed by McIvor Farrell Solicitors) for the
Respondent
Ms Smyth KC & Ms Murphy (instructed by the Official Solicitor)
___________
Before: Keegan LCJ, O’Hara J and McAlinden J
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction and anonymity
All of the parties in this judgment have been anonymised to protect the identity of
the child to whom the proceedings relate. Nothing must be disclosed or
published which would identify the child, the adults or the family in any way.
2
[1] In child abduction cases there is a presumption of expeditious return to the
country of a child’s habitual residence so that the court there can determine any
welfare dispute. In a small number of cases asylum applications have the potential to
frustrate that aim. This may also affect the good operation of the 1980 Hague
Convention (“the Hague Convention”). Reiterating the effect upon children of delay
Lord Stephens in the case G v G [2021] UKSC 9 also remarked that “There is a
substantial risk that the time taken to determine an asylum application, which even
if it is genuine can take months if not years, will frustrate the return of children
under the 1980 Hague Convention because, by the time the asylum application
concludes, the relationship between a child and the left-behind parent may be
harmed beyond repair.”
[2] This is an appeal against the judgment of Mr Justice Kinney (“the judge”) of
24 February 2023 whereby the court refused to implement the return order made in
respect of the subject child under article 12 of the Hague Convention, as enacted by
the Child Abduction and Custody Act 1985, until the mother’s asylum application
had been determined. The appellant father seeks the removal of the stay imposed
and for the child to be returned without further delay to Switzerland. We have
heard this appeal on an expedited basis given the need for promptitude in any
Hague Convention case.
[3] There was originally no cross appeal against the making of an order for return
and the dismissal of claims that the return should be refused by virtue of consent,
acquiescence, or grave risk of physical or psychological harm or otherwise
intolerable situation.
[4] During the course of the appeal before us, Ms McGrenera applied orally to
appeal the return order out of time essentially on the basis that a subsequent
successful grant of asylum meant that the return order should not have been made
on the basis that there would be a grave risk of physical or psychological harm or an
otherwise intolerable situation (the article 13(b) defence) if the child were returned to
Switzerland. We refused the application to extend time made on the basis we have
just described. We note that the father does not seek a review of the asylum decision
and so the asylum process is now complete and uncontentious.
[5] This appeal has been superseded by events given that the stay has now lapsed
as it was only imposed pending the determination of the asylum claim. There is also
now a large measure of agreement about return arrangements. At the conclusion of
the hearing last week, we expressed our view that the return order should now take
effect and what follows is our reasons.
[6] The appeal points were simply framed as follows:
(i) The court erred in law by finding the factual matrix of this case could not be
distinguished from G v G [2021] UKSC 9 and Re R(A Child) [2022] EWCA Civ
188.
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