Re- R (A Child) (Asylum and 1980 Hague Convention Application)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Lewis,Lord Justice Coulson |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWCA Civ 188 |
| Docket Number | Case No: CA-2021-000083 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 188
Lord Justice Moylan
Lord Justice Coulson
and
Lord Justice Lewis
Case No: CA-2021-000083
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE ROBERTS
FD20P00168
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harrison QC, Andrea Watts and Mehvish Chaudhry (instructed by Osbornes Law) for the Appellant
Mark Twomey QC, Cliona Papazian and Ralph Marnham (instructed by Brethertons LLP) for the Respondent
Christopher Hames QC and Charlotte Baker (instructed by Goodman Ray) for the Respondent (Guardian)
Alan Payne QC and Remi Reichhold (instructed by Treasury Solicitor) for the Secretary of State for the Home Department
Hearing dates: 7 and 8 December 2021
Approved Judgment
The father appeals from the order made by Mrs Justice Roberts (“the Judge”) on 1 October 2021 which dismissed his application under the provisions of the 1980 Hague Child Abduction Convention (“the 1980 Convention”) for the summary return of the parties' child, M, to Ukraine.
This is the second application made by the father under the 1980 Convention. His first application led to a summary return order being made on 7 May 2019. The mother briefly returned to Ukraine with M but wrongfully removed him on 2 October 2019. A second summary return order was made on 17 July 2020. The mother failed to comply with that order and with further orders which were subsequently made also requiring M to be returned to Ukraine.
Following the second summary return order, M made a claim for asylum which was received by the Home Office on 2 November 2020. The father was still seeking to enforce the return orders, and to obtain disclosure of material from the asylum claim, when, on 28 May 2021, M was granted asylum. As can be seen, the asylum claim was made some 18 months after the first application under the 1980 Convention had been determined and nearly four months after the second had been determined.
The Judge rejected the father's application for disclosure; and decided, in essence summarily, both to set aside the orders requiring M to be returned to Ukraine and to dismiss the father's substantive application under the 1980 Convention. The Judge made the latter order because she concluded, at [76], that, following the grant of asylum, the 1980 Convention proceedings were “without further purpose” and there was “nothing further for this court to examine”.
For the reasons set out below, I consider that the Judge's decision as to disclosure was flawed and that she was wrong summarily to dismiss the application under the 1980 Convention.
Further by way of introduction, I make the following additional observations in order to set this case in its broader context.
In the years 2017/2020 there were between 180 and 220 incoming applications made under the 1980 Convention through the International Child Abduction and Contact Unit (Table 4.2, Royal Courts of Justice Annual Tables 2020). Although separate statistics are not kept, there appear to be an increasing, although still small, number of cases in which either the respondent to an application under the 1980 Convention, and/or a child who is the subject of the application, claim asylum. This is a very recent development in this jurisdiction which raises serious issues about how the effective operation of the 1980 Convention can be maintained when an asylum claim has been made by the taking parent and/or the child(en).
These issues were considered in G v G (Secretary of State for the Home Department and others intervening) [2021] 2 WLR 705, decided by the Court of Appeal in September 2020 and the Supreme Court in March 2021. That case addressed the relationship between the two applications and the effect of an asylum claim and of the grant of asylum on an application and an order under the 1980 Convention. This is another such case but one with a very different factual background to that in G v G. In contrast to the present case, in G v G the application under the 1980 Convention and the asylum claim were made, effectively, simultaneously.
The Judge appears to have considered, at [57], that “the timing of the asylum claim” in this case did not impact on the application of the principles set out in G v G. She accepted Mr Payne's submission that those principles should apply “with appropriate modification … irrespective of the precise time during the Hague proceedings when the claim for asylum is either made or determined”. As a very general proposition this may be right, but, in my view, the timing of an asylum claim is, potentially, of considerable importance to the application of the principles set out in G v G. If this was ignored as a relevant factor, it would open the door to manipulative applications used to seek to subvert the expedited process that is required in the determination of applications under the 1980 Convention.
The parties to the proceedings are the father, represented by Mr Harrison QC, Ms Watts (who did not appear below) and Ms Chaudhry; the mother, represented by Mr Twomey QC and Ms Papazian (neither of whom appeared below); the Guardian, represented by Mr Hames QC and Ms Baker; and the Secretary of State for the Home Department, represented by Mr Payne QC and Mr Reichhold (who did not appear below).
Background
The judgment below is reported at [2021] EWHC 2642 (Fam). This sets out the background in some detail. The references below are to that judgment.
The mother, the father and their child, M, now aged 12, are all Ukrainian nationals. The mother and the father had a brief relationship but did not live together. They, and M, lived in Ukraine until January 2018 when the mother and M came to England pursuant to an agreement with the father that M could live here for six months.
The father had direct contact with M until mid-2016. The mother commenced parental responsibility proceedings in Ukraine in November 2017. In January 2018 she applied for permission to relocate to England with M. This was the context in which the father agreed to M temporarily living in England.
The mother did not return with M to Ukraine in July 2018, as had been agreed, but wrongfully retained him in England. This led to the father making an application under the 1980 Convention.
That application was determined by Theis J on 7 May 2019. The mother opposed the application but indicated that, if M's return was ordered, she would return with him. The mother relied on the following in opposing the application: (a) the father was not exercising rights of custody; (b) the father had consented to or acquiesced in M's retention in England; (c) M objected to returning; (d) there was a grave risk that M would suffer harm or be placed in an intolerable situation if returned to Ukraine; and (e) article 20 of the 1980 Convention.
Theis J rejected (a) and (b). It is only relevant for the purposes of the present appeal to refer to the matters relied on by the mother in support of (c), (d) and (e). In respect of M's objections, these were summarised in the Cafcass report as follows: M said he “is happy living” in England and did “not want to live in the Ukraine and with his father”; he said that his father “shouts, is rude and uses bad language”; he also referred to his asthma and said that “his health was affected living in the Ukraine because of the pollution”.
The mother's case in respect of article 13(b) was summarised by Theis J as follows:
“In relation to Article 13(b) (the mother's then counsel) submits the evidence demonstrates M's strength of feelings, he is settled here, doing well at school and for him to return to the Ukraine is likely to put him at grave risk of psychological harm and/or place him in an intolerable position. He has no relationship with the father, would be separated from his step-father who he clearly has a close relationship with and would have to return to a school system where he had previously not settled. Additionally, it is submitted his asthma would deteriorate.”
No additional matters were advanced in support of the mother's reliance on article 20.
Theis J decided that the article 13(b) threshold had not been met. She accepted that M might be “unsettled” by a return to Ukraine but noted that he would “be returning to much that remains familiar to him”. In her view, there was “no credible evidence” that M's health would be affected. She also decided that article 20 raised no “separate freestanding defence”.
As to M's objecting to returning, Theis J decided that he did object to returning to Ukraine but, in her discretion, she made a return order. She considered that M had “been heavily influenced by his mother” and that his welfare interests would be best determined by the courts in Ukraine.
The mother and M returned to Ukraine in June 2019. What then happened is set out by the Judge, at [10]:
“The collective expectation at the time was that she would apply immediately in the domestic courts in that jurisdiction for permission permanently to remove M to live with her and her husband in the home they had established in England. That did not happen. After what appears to have been a somewhat peripatetic existence, she left Ukraine at the beginning of October 2019 and travelled via Lithuania back to England.”
This wrongful removal led to the father's second application under the 1980 Convention.
I would also mention that proceedings concerning M have been continuing in Ukraine with each party making applications and with a number of hearings. For example, on 6 June 2019, the mother applied for child...
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