David Hodson, Marianna Michaelides and Lauren Bovington
What happens when a parent, who has abducted a child to this country and would be ordered to return the child immediately under the 1980 Hague Convention, claims asylum for themself and the child? Which takes precedence? The English High Court has just dealt with this issue.
For years now the growing international movement of children has resulted in many cases of relocation, abduction and wardship. Nevertheless, until recently the interplay between asylum and the wrongful removal or retention of children had not been considered. The problem is the conflict of two major international conventions; the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1951 Geneva Convention relating to the status of refugees.
In August Mr Justice Mostyn determined the first ever 1980 Hague Case to involve a pending asylum claim. Even earlier this year the Court of Appeal handed down a leading judgment in wardship proceedings in which there was a granted right of asylum. The impact of both cases led to the same conclusion. The asylum claims act as a bar to a child’s immediate return.
Whilst recent for the courts of England and Wales it had been previously addressed by courts in the USA and Canada. The conflicting provisions of international laws meant that the summary nature of immediate return under the 1980 Hague was facing off against the principle which prohibits a return whilst an asylum application is pending. The USA and Canada have come to different conclusions to England & Wales.
English High Court under 1980 Hague Convention
The situation arose for the first time, in England and Wales, in the context of the 1980 Hague Convention in the case of FE v YE  EWHC 2165 (Fam) in which our firm, The International Family Law Group LLP, acted for the father. The mother travelled from Israel to Thailand for a holiday with the children, and instead of returning as planned in July 2016 they travelled to England where they were later located. The mother applied for asylum for herself upon her arrival in the UK. It was not until somewhat later that she then applied for asylum on behalf of the children in their own right. The Home Secretary intervened.
At the commencement of the final hearing the mother’s applications for asylum had been initially rejected but was in the process of appeal to the First Tier Tribunal. Mostyn J pointed out that the appeal routes were extensive and would be by no means a short process. The next appeal was the Upper Tribunal, thereafter lay the Court of Appeal and Supreme Court, very many months or longer ahead. Yet 1980 Hague and Brussels II contemplate a six week timetable.
Mostyn J expressed a firm view, on the authority of Article 20 1980 Hague Convention, at paragraph 17 of his judgment that “I have no hesitation in concluding that where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending.”
Faced with a pending application for asylum Mostyn J concluded that he was not prevented from proceeding with the Hague matter and determining the substance of the mother’s defences but he could not order the return whilst the asylum applications were pending. He proceeded to deal with the mother’s defences, finding her credibility fatally flawed for various reasons. The mother’s defences to the summary return failed. Mostyn J ordered the return of the children with the order not taking effect until 15 days after the promulgation by the First-tier Tribunal reviewing the mother’s appeal. If the appeal was successful the order would be stayed. If not, the matter would be remitted to Mostyn J to decide whether the order should be further stayed or implemented.
This Judge deals with the non-jurisdictional facts of the case, especially the mother’s many other strong allegations, in paras 29 – 36 and rejects her defences, just as the Home Secretary had rejected her allegations at first instance in the asylum claim.
The judgment is relatively short, very clear, covers the background to all the relevant international instruments and is compulsory reading to any practitioner dealing with this asylum issue for international children. It argues sympathetically for the injustice of delayed return of abducted children yet demonstrates the fundamental human rights protections of the asylum laws and procedures properly used. He makes clear he has reverted to “first principles” in coming to his balanced decision.
Asylum and wardship
In April F v M  EWHC 949 (Fam) came before Mr Justice Hayden and concerned a granted claim of asylum with Pakistan. The case had been remitted to the High Court following the Court of Appeal decision Re H (A Child)  EWCA Civ 988. It was envisaged by Black LJ that in order to overcome a granted asylum claim the court would have to satisfy itself that the protection offered by the Secretary of State was not justified in the first place and that it would be for the High Court first to determine whether or not a granted claim acted as a bar.
Mr Justice Hayden concluded that a granted asylum claim is a bar in wardship proceedings, agreeing with Black LJ that the only route around that bar is successfully to challenge the Secretary of State for the Home Department’s (SSHD) decision. However, this would force an Applicant into judicial review proceedings as the only avenue whereby they could raise a challenge to the decision. It would then be for the applicant to re-issue a wardship application following a successful judicial review.
Asylum claim must be for the child
One of the most important considerations is in respect of whom an application for asylum has been made. Hague and wardship proceedings concern the return of the children. The court has no power to order the return of a parent. If an asylum claim has not been made in respect of the child then the parent’s claim will not pose any obstacle to a potential return. In Re H (Child Abduction: Mother’s Asylum)  EWHC 1820 (Fam) the mother’s refugee status was no bar to a father’s wardship application for the return of their two children to Pakistan. It was held that the decision of the Secretary of State was significant, but its basis was disputed and the court could not resolve the dispute. Protective measures were offered by way of undertakings and the mother’s refugee status did not prevent her from going to Pakistan if she chose to do so, but she was not compelled to do so by the order for return of the child.
At paragraph 22 of his judgment, Mostyn J contended that his approach differed from that of the Canadian Court of Appeal for Ontario in AMRI v KER  ONCA 417. That case concerned granted refugee status of a girl aged 14 from Mexico. The court’s approach was to allow a return order, acknowledging that the 1980 Hague Convention did not elevate itself above the principle of non-refoulement (in essence non-return of a refugee) but nonetheless considered that it could examine anew the basis for the grant of asylum having heard from both parties and that the grant of asylum gave rise to a “rebuttable presumption” of the existence of the risk of harm.
The concept of a “rebuttable presumption” was also adopted in the later case of Borisovs v Kubiles (2013) ONCJ 85 (Ontario Court of Justice). This case said that prior to returning a refugee child the court must consider the risk of persecution and its link with Article 13(b) 1980 Hague.
In other cases the Ontario Court of Justice held that it was an abducting parent’s choice to initiate the asylum process for the child and that any restrictions that flow from their choice do not form a legal impediment to the child returning, as required by the 1980 Convention; GB v VM (2012) ONCJ 745.
In Garcia Meza v Agrella Diaz (2015) US Dist Lexis 62912, the US District Court of Washington took the same approach. It was the mother’s choice to claim asylum and did not impact the decision concerning return of the child to Venezuela.
It is clear that the US and Canadian Courts have adopted a different priority to the English Courts, and they view the 1980 Hague process as taking precedence, as shown starkly by Moore v Moore (1990) Carswellent 1302 (Ontario District Court)
Mostyn J rejected the argument that a court considering a 1980 Hague application could consider the claim ‘anew’ because, as opposed to Canada, the sole lawful determiner of asylum claims in England is the Home Secretary and the family courts simply cannot ‘step into her shoes’.
A further argument successful in the US Court of Appeals for the Fifth Circuit in Sanchez v RGL (2015) 761 F.3d 495 was that a grant of asylum binds only the executive arm of the state and not the judiciary. This argument was promptly rejected by Mostyn J who considered it apparent that the judiciary is bound by the principle of non-refoulement.
There was an excellent paper given to the IAFL Annual Conference in Iceland in mid-September 2017 by Caroline Harnois of Montreal, Canada on the subject of asylum and child abduction.
It is clear England adopts a different position to the US and Canada.
The impact of failed asylum claims
What then is the impact of a failed asylum claim? Would it sway a case in favour of the Applicant if the Respondent has failed to prove to the SSHD that they have a genuine fear of persecution? Of course there is more than one defence to a Hague so a failed asylum claim may have little or no bearing when the defence relied upon is settlement, consent or acquiesce etc. But certainly where Article 13(b) is pleaded, a failed claim may be highly relevant to credibility.
In MM v VM  EWHC 1820 (Fam) (which later became Re M & Anor  UKHL 55 and a leading authority on settlement) an abducting mother and her new husband claimed asylum on entry to the UK having been found to have been travelling on false passports from Zimbabwe. The Applicant was her former husband. Her asylum claim had failed by the time the matter came to a final hearing. In the Hague proceedings the mother, relying on Article 13(b) among other defences, made a variety of spurious claims including that her new husband worked for an organisation known as the Central Intelligence Organisation and had been tortured by the Zimbabwe government. She also claimed that as a failed asylum seeker she would be prosecuted in Zimbabwe for attempting to flee. The court was completely unconvinced as to her credibility, finding her to be “devious, untrustworthy and frequently given to be lying, such that [the court] can place little or no confidence in much of what she said”. The mother’s defence under Article 13(b) failed albeit the failed asylum claim was only a minor factor in context of her other conduct culminating in a finding that she lacked credibility.
What practitioners can take from MM v VM is that a failed asylum claim may not affect credibility enough to sink an Article 13(b) defence but it will impact the court’s willingness to believe facts or allegations that the SSHD has concluded are unfounded or untrue. Whilst the tests under Article 13(b) and the Refugee Convention are quite different, they have quite a high threshold to satisfy.
It is now clear that as a result of Mostyn J’s decision in FE v YE a pending asylum claim will always act as a bar to effecting an immediate return, but not necessarily from making an order for return pending resolution of the asylum claim. The effect of the decision means that the children cannot yet return to Israel. If the First-tier Tribunal allows the mother’s appeal then the return order will be further stayed. If the First-tier Tribunal dismisses the mother’s appeal, but the mother signifies an intention seeking leave to appeal on a point of law, then the matter will be returned to Mostyn J to decide if the return order should be stayed further or implemented. That decision may depend on an assessment of the strength of the mother’s grounds of appeal. Mostyn J indicated that on that facts of this case, he thought it is unlikely the mother’s appeal will be successful and therefore it is expected that the children will eventually return to Israel.
Mostyn J rejected the father’s concerns that the decision could open the floodgates to Hague cases being derailed by late claims for asylum, and felt these fears were overstated. He noted that the majority of Hague cases that come to our courts seem to be abductions from within Europe, from which is it almost impossible to claim asylum save in exceptional cases. Many Hague cases seemed to be for economic migration purposes where an asylum claim would be impossible. In addition if a specious asylum claim is made, the Home Secretary has the power to certify it as unfit or unfounded for appeal. However it should be noted that the Home Secretary did not so certify the mother’s claim in this case despite the mother’s case being “fatally compromised”.
Despite Mostyn J’s assurances, the decision is likely to concern practitioners. In essence, an abducting parent can, at the very least, delay a return being made by making a last minute bogus asylum claim in respect of the children.
But if a genuine asylum claim was made, even late in the day, then the Hague process would have to be paused whilst the asylum claim (and any appeals) are dealt with. As Mostyn J stated in para 25, it is a clear instance of “principle not being sacrificed on the altar of expediency”.
David Hodson OBE MICArb is an English solicitor, mediator, arbitrator, an Australian qualified solicitor and barrister and a part time deputy family court judge in London (DDJ at the CFC). He is a co-founding partner of The International Family Law Group LLP, a specialist practice that serves the interests of international families and their children. He is editor and a primary author of The International Family Law Practice (Jordans 5th edition 2016), England’s leading textbook on international family law. He is visiting Professor at the University of Law. He was awarded the OBE for services to international family law.
Marianna Michaelides is a solicitor at The International Family Law Group LLP and specialises in all matters concerning children including international parental child abduction and international relocation matters.
Lauren Bovington is a paralegal at The International Family Law Group LLP.
This article was first published on Jordans International Family Law on 25th September 2017.
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© September 2017