The UK Supreme Court heard oral argument this week in the case of G v. G, on the complex issue of a child’s asylum claim and a parent’s request to return that child using the Hague Abduction Convention to the country that the child is trying to escape. You can find the case details here. The questions presented to the Supreme Court were:
1) Does a child named as a dependent on a parent’s asylum application have any protection from refoulement?
2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement?
3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?
The Court of Appeals for England and Wales concluded that the High Court was not barred from determining the Father’s application for the return of his child under the Hague Abduction Convention, nor was the court barred from making an order to return the child.
This question was previously at issue in the United States in the case of Lopez v. Sanchez. The Lopez trial court ordered the children returned to Mexico. There were several appeals to the 5th Circuit Court of Appeals, as the children’s asylum petition was pending and then granted. The Court of Appeals found no authority that a granting of asylum prevents the court from ordering the minor children returned to their habitual residence. However, the 5th Circuit consistently remanded the matter to the District Court to examine the evidence presented as part of the asylum claim to determine if it fit within the treaty’s exceptions, specifically whether it might make out a grave risk of harm or a violation of the children’s human rights.
The International Academy of Family Lawyers filed a brief in the G v. G case.