R (A Child : Asylum And 1980 Hague Convention Application)

Factual and Procedural Background

The appeal arises from an order made by Judge Roberts on 1 October 2021, dismissing the father's application under the 1980 Hague Child Abduction Convention ("the 1980 Convention") for the summary return of the parties' child, referred to as the child, to Ukraine. This was the father's second application under the 1980 Convention. The first application resulted in a summary return order on 7 May 2019, following which the mother briefly returned to Ukraine with the child but wrongfully removed the child on 2 October 2019. A second summary return order was made on 17 July 2020, which the mother failed to comply with, along with subsequent orders requiring the child's return.

Following the second return order, the child made an asylum claim received by the Home Office on 2 November 2020 and was granted asylum on 28 May 2021, approximately 18 months after the first application and nearly four months after the second application under the 1980 Convention had been determined. The Judge rejected the father's application for disclosure of material from the asylum claim and summarily set aside the return orders and dismissed the father's substantive application under the 1980 Convention, reasoning that the proceedings were "without further purpose" after the grant of asylum.

The parties are nationals of Ukraine. The parents had a brief relationship and did not cohabit. The child lived in Ukraine until January 2018 when the mother and child came to England under an agreement allowing the child to live there temporarily. The mother did not return the child to Ukraine as agreed, leading to the father's first application under the 1980 Convention, which was granted and the child was ordered to return. The mother and child returned to Ukraine in June 2019 but the mother wrongfully removed the child back to England in October 2019, prompting the father's second application, which also resulted in a return order.

Multiple applications and hearings took place in Ukraine concerning the child, including child support proceedings and parental responsibility proceedings. The child’s asylum claim was instigated by the mother after the second return order was made. The father sought disclosure of the asylum application and related documents, which the Judge refused. The child and the Secretary of State for the Home Department were joined to the proceedings. The child's asylum was granted without reasons being provided.

Legal Issues Presented

1. Whether the Judge erred in summarily dismissing the father's application under the 1980 Hague Child Abduction Convention following the grant of asylum to the child.
2. Whether the Judge was correct to refuse disclosure of the asylum claim material to the father for the purposes of the 1980 Convention proceedings.
3. Whether the return orders made under the 1980 Convention should be set aside following the grant of asylum.
4. The interplay and coordination between asylum claims and Hague Convention proceedings, including the timing of asylum claims relative to Hague applications.

Arguments of the Parties

Appellant's Arguments

• The Judge erred by summarily dismissing the father's 1980 Convention application without a proper determination of its merits following the grant of asylum.
• The father's application for disclosure of the asylum material was relevant and necessary for the fair determination of the 1980 Convention application.
• The timing of the asylum claim, made long after the initial Hague applications, frustrates the objectives of the 1980 Convention and should not be allowed to prevent a proper hearing.
• The father's application under the 1980 Convention has not been fairly and properly determined, denying due process.

Respondents' Arguments

• The grant of asylum to the child operates to prevent enforcement of return orders and effectively ends the 1980 Convention proceedings by operation of law.
• The father's pursuit of the 1980 Convention proceedings after the grant of asylum is an improper attempt to review or interfere with the asylum process.
• Disclosure of asylum material to the father would breach the child's Article 8 rights and undermine the confidentiality of the asylum process.
• The Family Division should dismiss the 1980 Convention application where asylum has been granted as there is no effective remedy remaining.
• The Secretary of State for the Home Department expressed concerns that repeated hearings and reconsideration following asylum grants would damage the asylum system.

Guardian's Arguments

• The grant of asylum creates a jurisdictional vacuum, meaning there is no live context for further relief under the 1980 Convention proceedings.
• The court must refuse disclosure of asylum documents to maintain the confidentiality and integrity of the asylum system.
• The 1980 Convention proceedings should be dismissed following the grant of asylum as there is no further purpose.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the procedural history and found that the father's two successful return orders under the 1980 Convention preceded the child's asylum claim, which was made significantly later. The court emphasized the importance of parties advancing all relevant facts at the outset of Hague proceedings to avoid manipulation of the expedited process. It noted that the timing of the asylum claim is critical and that late claims frustrate the coordination intended between the 1980 Convention and the Refugee Convention as explained in G v G.

The court rejected the Guardian's submission that the grant of asylum automatically ends the 1980 Convention proceedings by operation of law. Instead, it held that the court retains the power to set aside return orders and must then fairly and properly redetermine the substantive application. The court found that the Judge below erred by summarily dismissing the father's application without a proper hearing or exercise of discretion, effectively denying due process.

Regarding disclosure, the court concluded that disclosure of asylum material is permissible and often necessary in Hague proceedings to ensure fairness. The Judge below failed to consider disclosure in the context of redetermining the substantive application and improperly refused it on confidentiality grounds without sufficient justification. The court also rejected submissions that pursuing the 1980 Convention application post-asylum grant constitutes an illegitimate attempt to review or interfere with the asylum process, emphasizing the distinct nature of the two processes.

The court recognized the Secretary of State's duty to reconsider asylum decisions in light of new evidence from family proceedings and noted that reasoned family court decisions can assist the Secretary of State. It underscored that the dismissal of the Hague application post-asylum grant without substantive reconsideration contradicts the objectives of both Conventions and the established case law.

In sum, the court found that while the Judge was entitled to set aside the return orders due to the grant of asylum, dismissing the substantive application without further consideration was improper. The timing and late nature of the asylum claim complicated the case but did not justify summary dismissal. The court emphasized the need for an urgent case management hearing to determine disclosure and to fairly and properly determine the father's application under the 1980 Convention.

Holding and Implications

The appeal is ALLOWED. The court held that:

• The Judge was entitled to set aside the existing return orders following the grant of asylum, constituting a fundamental change of circumstances.
• The Judge erred in summarily dismissing the father's substantive application under the 1980 Convention without a fair and proper hearing.
• The father's application for disclosure of asylum materials should be reconsidered in the context of the substantive hearing to ensure fairness.
• The 1980 Convention proceedings and asylum claims are distinct but related processes that should be coordinated, especially regarding disclosure and timing.

The case is remitted for an urgent case management hearing to address disclosure of asylum material and to facilitate a fair and proper determination of the father's substantive application under the 1980 Convention. No new precedent is established beyond reinforcing existing principles on coordination between asylum and Hague proceedings and the necessity of substantive hearings post-asylum grant.