Re H (a child) (international abduction: asylum and welfare) [2016] EWCA Civ 988, [2016] All ER (D) 79 (Oct)
The Court of Appeal, Civil Division, allowed a mother's appeal
from High Court orders for her son to be returned to Pakistan. The mother had
claimed asylum in the UK for herself and her son, but subsequently agreed a
consent order to return with the child to Pakistan, where the father was
living. When she failed to comply with the order, the High Court ordered it to
be enforced, even though she and the child had, in the meantime, been granted
asylum because her fear of persecution in Pakistan was
well founded and there was a real risk of them being
subjected to serious harm. However, the Court of Appeal held that the
High Court had paid insufficient attention to the asylum claim when it made the
consent order and to the grant of refugee status when it decided the order
should be enforced. The Court of Appeal set aside both the consent order and
the subsequent order enforcing it.
What was the background
to the case?
The father, mother and child were of Pakistani origin. They
moved to live in Saudi Arabia. The mother and child visited the UK and refused
to return to Saudi. The mother and child applied for asylum in the UK based on
allegations of violence and possible exposure to radicalisation.
The father sought the child’s ‘return’ to Pakistan using the
inherent jurisdiction of the High Court. At the final hearing, the mother
agreed to return and the court made an order by consent. Shortly afterwards she
resiled from that agreement, and her and the child’s asylum claims were
granted.
The father sought to enforce the return order and the mother
in turn sought to set it aside on the bases of duress by her legal team and a
change in circumstances. The court refused her application and made an order
enforcing the return order.
The mother appealed to the Court of Appeal. The child saw a
solicitor and was joined to the proceedings and appealed in his own right on
the basis that the High Court should never have approved the original consent
order and should have in any event varied it following the grant of asylum. The
father cross-appealed, arguing that the High Court had no power to set aside
its own order.
What issues did the
case raise?
The case raised a host of issues:
the duty of a judge presented with a consent
order to independently consider the child’s best interests
the circumstances in which a child should be
joined as a party
the powers of a court to set aside its own
orders
the effect, if any, on the courts' powers to
order the return of a child where the child has been granted asylum from the
‘return’ country in his own right by the Secretary of State
whether a grant of asylum can be set aside where
it was granted on the basis of allegations denied by the other parent, and
whether it can be set aside by the family court or only the Secretary of State
What did the Court of Appeal decide?
The court allowed the appeal on all grounds and set aside the
original consent order, observing that the child should have been made a party
at that stage. The court also set aside the subsequent order enforcing the
original consent return order. The application was remitted for re-hearing with
a direction that the child should be a party and the Secretary of State should
be joined so that the asylum issues could be properly explored. The reasons for
doing so were, in short summary, as follows.
A judge (particularly in wardship) presented with a consent
order has a duty to independently consider whether the proposed order is in the
child’s best interests. In unusual cases, such as this and in particular where
domestic violence is a feature, the court should not rubber-stamp a parental
agreement but must instead carry out its own evaluation and, if necessary,
adjourn to enable the child to be separately represented so that his interests
are not obscured by the parental agreement.
In unusual circumstances, the court of its own motion must
consider whether the child’s interests require separate representation. Where
factors referred to in Practice Direction 16A of the Family Procedure Rules are
present, separate representation may be required.
The grant of asylum (or humanitarian protection) to children
in their own right by the Secretary of State may constitute an absolute bar to
the return of those children to the country from which they have been granted
asylum. An order for return might place the state itself in breach of the
protections provided by the UN Convention on the Rights of the Child and the EU
Directives. In the alternative, if the grant of asylum (or humanitarian
protection) to children in their own right is not an absolute bar, at the least
such a grant is a very significant
welfare factor. The Court of Appeal did not determine this issue. The interplay
between the wardship jurisdiction and the grant of asylum (or humanitarian
protection) to children in their own right by the Secretary of State is a very
important issue, of which there is no reported case to date, and will
require careful examination at the
remitted hearing in the High Court.
The Court of Appeal concluded that because this was a wardship
case where welfare was paramount, it did not need to determine the thorny
problem of the powers of a court to set
aside its own orders. Where welfare was paramount, the court could always vary
its own order on the basis of a fresh welfare evaluation. It was not
constrained in the same way as a court considering, for instance, a 1980 Hague
Convention order.
What are the practical
implications of the decision?
Although the asylum issues are the most complex and
interesting, there are a limited number of cases where they will raise their
head. As set out above, the remitted hearing will determine the interplay
between the wardship jurisdiction and the grant of asylum (or humanitarian
protection) to the child in his own right by the Secretary of State and is
therefore a work in progress.
In relation to day-to-day practice, the most significant feature
is the reminder to practitioners, Cafcass and judges that whilst parental
agreement is a good thing, that does not absolve the court from the duty to
independently consider the child’s welfare. Rubber-stamping parental agreement,
in particular where there is some ‘flag’ such as domestic violence, should be a
thing of the past. It is also a reminder that orders under the Children Act
1989 can be re-visited by a court at first instance, albeit not without some
change of circumstances.
How helpful is this
judgment in clarifying the law in this area? Are there any remaining grey
areas?
The focus in the judgment on the need for judges to
independently consider welfare, irrespective of parental agreement or how the
parents formulate the issues in a dispute, is powerfully emphasised. The
possible need for independent representation of the child is also helpfully
highlighted.
Grey areas remain in the interplay between the wardship
jurisdiction and the grant of asylum (or humanitarian protection) to children in
their own right by the Secretary of State, and in the ability of a court at
first instance to set aside its own orders where they are not based on a
paramount welfare jurisdiction.
How does the decision
fit in with other developments in this area?
Perhaps the most powerful message from the judgment viewed as
a whole is the focus on the child and not the parents and their issues. That is
wholly in line with the tidal flow in relation to the rights of the child.
There is an interesting tension between the emphasis of appellate courts on the
need for parents to ‘own’ decisions over their children and the need for the
court to ensure the position of the child is not obscured by the position taken
by the parents. The asylum issues are a whole different area and we await
developments in the remitted proceedings before the High Court.
