G v G
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 15 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1185 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/0854 |
| Date | 15 September 2020 |
and
[2020] EWCA Civ 1185
Lord Justice Hickinbottom
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2020/0854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
THE HON MRS JUSTICE LIEVEN
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND THE IMMIGRATION ACTS
AND IN THE MATTER OF G (A CHILD) (CHILD ABDUCTION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Devereux QC, Zane Malik and William Tyzack (instructed by Dawson Cornwell) for the Appellant Father
Henry Setright QC, Michael Hosford-Tanner and Michael Gration (instructed by A&N Care Solicitors) for the Respondent Mother
Alan Payne QC and John Goss (instructed by Government Legal Department) for the First Intervener
Richard Harrison QC, Jennifer Perrins and Mark Smith (instructed by Brethertons LLP Solicitors) for the Second Intervener (written submissions only)
James Turner QC, Mehvish Chaudhry and Paige Campbell (instructed by Bindmans LLP) for the Third Intervener
Samantha King QC, S Chelvan and Charlotte Baker (instructed by Goodman Ray Solicitors) for the Fourth Intervener (written submissions only)
Hearing dates: 10–11 August 2020
Further written submissions: 17 August-14 September 2020
Approved Judgment
Introduction
This is the judgment of the court to which all of its members have contributed.
This appeal gives rise to issues of some importance in relation to the interplay between obligations of the state, on the one hand, under the Convention on the Civil Aspects of International Child Abduction concluded on 25 October 1980 (“the 1980 Hague Convention”) as incorporated by the Child Abduction and Custody Act 1985 (“the 1985 Act”) and, on the other hand, under immigration law including the Convention and Protocol relating to the Status of Refugees adopted on 25 July 1951 and 16 December 1976 (“the 1951 Geneva Convention”) and relevant European Directives; and, notably, 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). It also raises issues as to the rights of children in the context of such situations.
The issues arise in the context of an appeal from the Order of Lieven J dated 5 June 2020 under which the application of the Appellant father (“the father”) under the 1980 Hague Convention for the immediate return to South Africa of his daughter (to whom we shall give the initial “G” for the purposes of anonymisation) who had been removed to the United Kingdom by the Respondent mother (“the mother”) was stayed pending the determination by the Secretary of State for the Home Department (“the Secretary of State”) of asylum claims made by the mother and, as the judge understood it, by G.
Before us, Edward Devereux QC, Zane Malik and William Tyzack appeared for the father, and Henry Setright QC, Michael Hosford-Tanner and Michael Gration for the mother. Alan Payne QC and John Goss appeared for the First Intervener, the Secretary of State. There are three other Interveners, each a non-governmental organisation involved in relevant fields.
i) The International Centre for Family Law, Policy and Practice is an organisation associated with the University of Westminster, involved in the area of family and child law with a particular focus on international aspects including child abduction. James Turner QC, Mehvish Chaudhry and Paige Campbell appeared on its behalf.
ii) Reunite International Child Abduction Centre (“Reunite”) undertakes and publishes research, and provides advice and assistance (including a mediation service) to individuals and government, statutory and voluntary bodies, in the field of international child abduction. Richard Harrison QC, Jennifer Perrins and Mark Smith appeared on its behalf by way of written submissions only.
iii) Southall Black Sisters (“SBS”) is an organisation which provides advice, resources and advocacy in respect of gender-related violence and discrimination against black and other ethnic minority (mainly migrant) women. Samantha King QC, S Chelvan and Charlotte Baker appeared on its behalf, again by way of written submissions only.
At the outset, we thank all Counsel and their supporting teams for their considerable assistance.
The Facts
The father is a national of a European Union Member State (“EUMS”) who, for over 20 years, has lived and worked in South Africa, where he has permanent residence. In 2006, he met the mother, a South African citizen who describes herself as coming from “a very traditional African family”. They married in 2010; and their only child, G, was born in 2012. She has dual EUMS/South African nationality, but has always been habitually resident in South Africa.
The mother describes a difficult marriage, in which she says the father was controlling, being sexually and racially abusive towards her, suggestions which he denies. The mother had some mental health issues which she blames on this alleged behaviour.
In 2014, the mother and the father separated, and the father moved to another house, a few kilometres away from the mother's home. Relations between them remained difficult. The mother says that the father continued to be aggressive and abusive towards her. The mother was found to be HIV positive, the source of which was a matter of dispute between them. G continued to reside with her mother, but the father had regular contact. Following a divorce in 2018 and a report by a family counsellor, the South African equivalent of a child arrangements order was made. The father and the mother shared full parental rights and responsibilities in relation to G, who continued to live with the mother but had extensive contact with the father on alternate weekends and for half the school holidays, and he regularly picked up G from school. The father paid the mother maintenance, and also for items such as school fees.
For a child to leave the jurisdiction, South African law requires the written consent of all those with full parental responsibility. In December 2019, with the mother's consent, the father took G to the EUMS to spend time with his extended family. During that period, the mother visited the UK, from where she messaged the father to say that she had made contacts and found employment in England, and intended to remain here. She suggested she could collect G from the EUMS, and take her directly from there to live in England. The father objected, pointing out that he had parental rights, he did not think that being schooled in England was in G's best interests, and the South African courts should make any decisions in relation to G.
In the event, the father and G returned to South Africa in January 2020, as planned. The mother appeared to accept that the father did not want G to relocate to the UK. She too returned to South Africa, and continued to be G's primary carer.
In February 2020, the mother told the father that she was going to take G for a long weekend to Sun City near Johannesburg. The father expected to see G next when he picked her up from school on 2 March. However, when he got to the school that day, G was not there: in an exchange of texts, the mother said she was running late, and G would be at school the following day. However, she was not there at the end of that school day either. In further messaging, the mother indicated that she had in fact taken G to England where she had enrolled her in a new school. The father was blocked from speaking with either the mother or G.
On 11 March 2010, the father made an application to the South African Central Authority for the return of G under the 1980 Hague Convention. That request was transmitted to the English Central Authority, and an application was duly issued in the Family Division of the High Court on 14 April 2020. At the first hearing, before Newton J on 29 April 2020, various disclosure orders were made together with a location order. The mother was served, and the location order executed, the following day. A return date was fixed for 15 May 2020.
Under the disclosure orders, on 12 May 2020, the Secretary of State confirmed an address for the mother; and also confirmed that an application for asylum had been made “by or on behalf of” the mother and “by or on behalf of” G on entry into the UK on 2 March 2020. As explained below (paragraph 23), the latter was subsequently found to be incorrect as no separate application had been made on behalf of G.
In a statement dated 2 June 2020 served in response to the 1980 Hague Convention application, the mother explained that she had always had feelings for women, but had been brought up to believe that homosexuality was a sin. However, following her separation from the father, she had told her friends that she was lesbian. As a result, she had been threatened by members of her family and, in May 2019, subjected to a very painful and frightening “cleansing ceremony” at her family's home. After that episode, she continued to receive threats from her family including death threats; but the police, to whom she reported them, did not take the threats seriously and said they could do nothing about them. While she was in England in December 2019, her car in South Africa was vandalised; and, on her return to South Africa in February 2020, someone she believed to have been her brother tried to force her off the road whilst she was driving, writing off her car in the...
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