The Court of Appeal recently handed down judgment in child abduction Hague Convention case

On Friday 18 February 2022, the Court of Appeal handed down its judgment in Re (A Child) (Asylum and 1980 Hague Convention Application) [2022] EWCA Civ 188. Alan Payne QC and Remi Reichhold acted for the Secretary of State for the Home Department (SSHD).

This case concerns a family dispute. The mother removed her child (M) from Ukraine and became subject to two successful applications by the father under the 1980 Hague Convention for M’s summary return to Ukraine. Following the second summary return order, M was granted asylum by the Home Office. The father applied to enforce the return orders and also sought disclosure of the material supplied to the SSHD in support of M’s asylum claim. At first instance, Roberts J set aside the return orders and dismissed the father’s substantive application under the Hague Convention.

The Court of Appeal sought to distinguish the facts of this case from that of G v G [2021] UKSC 9, recently handed down by the Supreme Court (in which Alan Payne QC and John Goss appeared for the SSHD). Moylan LJ (with whom Coulson LJ and Lewis LJ agreed) held that whereas in G v G the applications for asylum and summary return were made “effectively simultaneously” and proceeded “in parallel”, in this case the asylum application was a “late claim” such that it did not run in parallel with the Hague Convention application. Moylan LJ sounded the following “note of caution”: “[i]f greater experience demonstrates or suggests that the respective processes are being manipulated by one party, it may well be that the court will have to revisit the guidance given in G v G and determine whether it requires adjustment to seek to prevent such manipulation.” Moylan LJ determined that in this case the “real focus” was whether there had been a “fair and proper determination of the father’s application under the 1980 Convention.” Ultimately, Moylan LJ disagreed with Roberts J’s conclusion that the grant of asylum to M operated to “prevent the enforcement of an order for summary return” and that proceedings under the Hague Convention were “without further purpose”. As a result, the Court of Appeal directed that the father’s application under the Hague Convention should be listed for an urgent case management hearing and that the issue of disclosure of the asylum material would need to be determined.