When our Paths Cross Again: The Supreme Court's Management of Related Asylum and Child Abduction Claims in G v G
| Published date | 01 September 2022 |
| Author | Kieran Walsh,Sarah Atkins |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12701 |
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Modern Law Review
DOI:10.1111/1468-2230.12701
CASE
When our Paths Cross Again: The Supreme Court’s
Management of Related Asylum and Child Abduction
Claims in GvG
Kieran Walsh and Sarah Atkins∗
This case note examines how the Supreme Court approached the complex problemof overlap-
ping legal proceedings involving asylum claims and child abduction.It analyses the pur posive
approach taken by the Supreme Court in GvGto the determination of how a child,who has
not independently claimed asylum, should be understood to have done so,and the ramications
of this for the child’s legal status in any claim for their return under the Hague Convention on
Child Abduction. It further seeks to address the novel approach by which the Supreme Court
dealt with this problem.By for mulating draft standard directions for the handling of such cases,
the Court brought into focus questions about the limits of the judicial function of promoting
good governance.
INTRODUCTION
The UK Supreme Court decision in GvG1nally resolves a fundamental
conict in case law concerning the rights of children and abducting parents:
Does an asylum application submitted by an abducting parent prevent the return
of a child in child abduction proceedings? The answer is now, eectively, yes.
The Supreme Court has ruled that in cases where a parent has applied for
refugee status but the child has not, if the child is listed as a dependent on the
parent’s asylum claim, then the child can be ‘objectively understood’ as having
sought asylum as well.2Given that a person who has sought asylum cannot
be returned to their home state where they fear persecution (refoulement),
until their asylum claim has been determined, it follows that their dependent
child could not be refouled either. In such circumstances, enforcing a return
order for an abducted child via Hague Convention proceedings would violate
the non-refoulement rule. Yet in making this decision, the Cour t also had to
wrestle with practical problems involving the procedural overlap between the
concurrent child abduction and asylum claims. Its approach to this problem
represents the Supreme Court’s new-found expansive understanding of its role,
∗Both authors are senior lecturers at the University of Portsmouth.
1GvG[2021] UKSC 9 (G(SC)).
2ibid at [117].
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited. (2022) 85(5) MLR 1245–1260
Related Asylum and Child Abduction Claims in GvG
thereby providing further proof of an ongoing shift in the UK constitutional
order.
This decision begged the question as to whether or not an asylum claim poses
a bar to the hearing, determination, or implementation of return orders aris-
ing from child abduction proceedings.The Supreme Court has now conrmed
that while the determination of such proceedings is not barred, the implemen-
tation of any order for the return of the child is so barred.3Child abduction
law operates on the basis that, unless exceptional circumstances apply, a child
should be promptly returned to the country of their habitual residence.4This is
because courts in that country-of-orig in are deemed to be usually better suited
to resolving any dispute about the welfare of the child.5Consequently, Article
11 of the Hague Convention imposes an eective six-week time limit on child
abduction proceedings. By contrast, Asylum proceedings can last much longer;
initial determinations from the Secretary of State for the Home Department
(SSHD) often take more than six months.6If an asylum application could act as a
bar to proceeding with a Hague case,the spectre of delay caused by tactical asy-
lum claims would thereby be raised.This would eectively defeat a left-behind
parent’s claim for the immediate return of the child, and could potentially harm
the child’s best interests by depriving them of the care of the left-behind par-
ent.7It would also undermine the eective operation of the Hague Convention
itself.
The decision in GvGis important not only for how it reconciles the con-
icts between two parallel sets of legal procedures but for the way in which the
Supreme Court attempts to prevent future diculties in similar proceedings. In
the course of its judgment, the Court produced draft guidance which would
apply to both the High Court and the SSHD on the management of inter-
secting Hague and asylum cases. Following an outline of the Court’s decision,
this note will, therefore, rst analyse the implications of GvGfor the initial
legal problems presented by the fact that a child is subject to two, potentially
incompatible, sets of legal proceedings. It will then examine the method the
Supreme Court used to pre-empt future disputes and what that shows about
the Supreme Court’s own view of its own role.
CASE BACKGROUND AND EARLY PROCEEDINGS
The Hague Convention proceedings in GvGconcerned an eight year old
South African girl who was taken from South Africa to the UK by her mother
without the consent of her father. On arr ival in the UK in March 2020, the
mother promptly made a claim for refugee status to the SSHD claiming that if
she were returned to South Africa, she would be subjected to persecution due
3ibid at [130].
4 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of
International Child Abduction, 25 October 1980, Hague XXVIII (Hague Convention),Art 12.
5 E. Perez-Vera,Explanator y Report on the 1980 HCCH Child Abduction Convention,[16]-[19].
6G.Sturge,House of Commons Library Brieng Paper: Asylum Statistics Number SN01403 (25 March
2021) 13.
7G(SC) n 1 above at [3].
1246 © 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited.
(2022) 85(5) MLR 1245–1260
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