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Setting aside High Court orders for return in asylum cases: Re H (A Child) [2016] EWCA Civ 988

Date:8 NOV 2016
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Queen's Counsel and Mediator
In Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988, 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 asylum claims for her and the child 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:
  1. the duty of a judge presented with a consent order to independently consider the child’s best interests
  2. the circumstances in which a child should be joined as a party
  3. the powers of a court to set aside its own orders
  4. 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
  5. 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.
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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 their 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 Family Procedure Rules 2010 (FPR 2010), PD 16A 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 while 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.

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David Williams QC is the General Editor of Rayden and Jackson on Relationship Breakdown, Finances and Children. He is also a part of the Butterworths Family Law Services author team.

Jacqueline Renton is a regular contributor to Jordan Publishing's International Family Law website.

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