HR (Parallel Child Abduction and Asylum Proceedings), Re

This is the judgment of the court to which both members have contributed.

The proceedings, which have been brought under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention) and the Child Abduction and Custody Act 1985, relate to two boys, A and B, who are now aged 11½ years and 9½ years respectively. The children’s parents, who married in 2010, are both American citizens. The mother also has Bahamian nationality. The family home has always been in America and, until their mother unilaterally brought the boys to England on 4 August 2022, none of the family members had any connection with the UK whatsoever.

By an application made on 17 March 2023, the children’s father seeks a summary order for their return to the USA. The mother accepts that, by bringing the children to the UK without the knowledge of the father and in breach of his custody rights, they were wrongfully removed from the state of their habitual residence under Art 3 of the Convention. She nevertheless resists a return order on the basis that:

On arrival in the UK, the mother immediately claimed asylum on behalf of herself and her sons. Judge Mandalia is a judge of the Upper Tribunal Immigration and Asylum Chamber [UTIAC], who also has authorisation to sit as a deputy High Court judge in the Family Division. The present constitution has been arranged so that, in addition to determining the issues in the present case, the court may make some general observations upon the approach to 1980 Hague Convention cases where there is a parallel claim for asylum.

The parents separated a year or so after the birth of the younger child. Divorce proceedings were commenced in 2016. An agreement was made for joint legal custody, with physical custody being granted to the mother and partial physical custody granted to the father. The divorce was granted in 2018. Thereafter, in 2019 and 2020 there were some difficulties over the contact arrangements. In July 2020 the father applied to modify the custody order. A temporary custody order was made essentially maintaining the previous arrangements. In March 2021 Child and Youth Services [‘the CYS’] investigated an allegation of abuse by father regarding the eldest boy, but determined that the allegation was “unfounded”.

All contact between the boys and their father was stopped by the mother in June 2021 and he has not seen them in the ensuing three years since that date. At the same time the mother raised with the CYS an allegation of suspected sexual abuse of A by the father. Applications were made for temporary Sexual Violence Protection Orders. In August 2021 the CYS completed its investigation and determined that the allegations of sexual abuse, which by then had extended to both boys, were “unfounded”.

In April 2022 the father issued an emergency petition for custody. On 6 July 2022 the mother's allegations of sexual abuse against the father, and the father's application relating to the custody arrangements were heard at a one day hearing before Judge Love in the Court of Common Pleas Delaware County, Pennsylvania. During the hearing the judge considered the available evidence, heard oral evidence from each parent, and conducted a process in which she heard evidence from each of the two boys in the presence of the lawyers, but in the absence of their parents. The children had been tendered by the mother as witnesses.

This court has a full transcript of the hearing before Judge Love. The judgment makes plain that the burden of proof with respect to the sexual abuse allegations was upon the mother “pursuant to the PFA statute” [‘Protection from Abuse’]. Judge Love considered whether the allegations made by the mother “can be proven with clear and convincing evidence”. The case advanced on behalf of the mother and accepted by the First-tier Tribunal (“FtT”) in her appeal against the decision of the Secretary of State to refuse the claims for international protection was that the standard applied was an intermediate standard which was higher than ‘a reasonable degree of likelihood’ and ‘a balance of probabilities’. For the purposes of these proceedings, the parties have instructed a joint expert, Mr Patrick Scanlon, who has provided an opinion based on his education and experience over several years practice in criminal law, both as a prosecutor and defence attorney in the USA. In an email he has confirmed the standard of proof for proving abuse in a PFA claim in Delaware County as in the rest of Pennsylvania is the “preponderance of the evidence”. That is, ‘more likely than not’. Judge Love said:

Court orders reflecting the judge’s judgment were issued on 7 July 2022. On that very same day the mother launched a further allegation of child sexual abuse by the father with respect to both boys, apparently based upon exactly the same evidence, with the CYS. The CYS wrote on 5 August confirming that their investigation was complete and that, once again, the allegations were determined to be “unfounded”. However, the previous day, 4th August, the mother had travelled to England with the children. The father had no communication from the mother and had no idea where in the world she had gone, there being no reason to suspect that she might choose the UK as her destination.

The day after her arrival in this jurisdiction the mother applied for asylum on behalf of herself and the children as dependents. Following an interview with the Home Office in November, a formal decision letter was sent on 10 February 2023 refusing the asylum claim.

In the meantime, in the US, a court order was made on 25 October 2022 granting the father sole legal and physical custody of the boys. Investigations reported in mid-January 2023 that the mother had flown to Heathrow the previous August and, on 17 March 2023, the father issued his application for summary return in this jurisdiction under the 1980 Hague Convention. By mid-April the mother had been located and she made her first appearance before this court on 25 April 2023.

It is to be noted that, in stark contravention to the policy of the 1980 Hague Convention, this matter has not come before the court for an effective final hearing until some 15 months after the father made his initial application. We will turn in due course to give a short procedural account of the various reasons for delay and make observations that are intended to lead to the swifter dispatch of all similar applications in future cases.

Although no precise date has been given, the mother issued an appeal from the Home Office decision to the FtT sometime shortly prior to the father’s Hague application. Her appeal to the FtT was supported by expert reports from a psychotherapist, an independent social worker and an expert in American family law. The hearing before the FtT took place over the course of two days and the decision of the two judges was promulgated on 25 March 2024. In the course of a judgment which runs to 20 pages, the FtT undertook a careful and detailed analysis of the allegations of domestic abuse to the mother (which were accepted), and sexual abuse to the two boys said to have been perpetrated by the father. While the burden of proving matters was upon the applicant mother, the standard of proof applied by the FtT was lower than the balance of probabilities and lower than that applied by Judge Love in America. The FtT commenced by making their findings on “the lower standard of a reasonable degree of likelihood”.

The FtT stated its overall conclusion as follows:

The decision of the FtT was therefore to dismiss the asylum claim, a related humanitarian protection claim and a claim made under ECHR, Article 3. The mother's subsequent applications to the FtT and UTIAC for permission to appeal have been refused. She has therefore exhausted her domestic remedies with respect to gaining lawful permission to remain in this jurisdiction. She is liable to removal to the USA by the Home Office. In his submissions before us, Mr Jarman submitted, initially, that it may be open to the mother to make a further claim for asylum, but on reflection, he submitted it would be open to her to make an application for leave to remain on human rights grounds, outside the immigration rules, inviting the Secretary of State to exercise discretion in favour of the mother and children to regularise their stay in the UK in the event that we decline to make a return order.

Since her arrival in the UK, the mother and the children have been accommodated by the Home Office. They currently live together in a one room bedsit. The children have attended school since their arrival, and are said to be doing well there. Although her various claims have been dismissed, the Home Office has confirmed that, for so long as she remains living in the UK, she will continue to receive a subsistence allowance and accommodation until the youngest boy is 18 years old. Although the mother has a medical qualification in Podiatry, and had her own seemingly successful practice in America before her departure with the children, she is not entitled to work here.

Mr Jarman submitted that the precarious nature of the mother and children’s position in the UK, now that their international protection claims have been determined and they have exhausted their rights of appeal, could be addressed by yet a further application for discretionary leave to remain in the UK. He submitted that the effect of that would be that the current ‘unlawful presence’ of the mother and children could be regularised with a grant of leave to remain. The approach that we have taken to that submission is that an application under the 1980 Hague Convention must be determined on its own merits without the temptation to infer that some future application made to the Secretary of State on some unknown basis might result in the Secretary of State exercising his or her discretion to permit a parent and child who otherwise has no lawful basis to be in the UK, to remain. As with any claim for international protection, the Secretary of State for the Home Department has sole responsibility for immigration control and the Family Court should not in any way seek to trespass upon or influence matters that fall within the exclusive powers of the Secretary of State.

The children were joined as parties to these proceedings by a court order made on 23 May 2023. They have been represented by CAFCASS Legal and counsel, who have taken their instructions from Ms Baker, the children’s guardian. At the start of the hearing, an application was made on behalf of their mother for the proceedings to be adjourned so that the children might meet an independent solicitor and, if assessed to be of sufficient competence to give direct instructions, for that solicitor to act on their behalf. In presenting the mother’s application, Mr Jarman submitted, in circumstances where the children are clearly objecting to any return to the USA, but where their guardian and lawyers would be arguing in favour of a return, that the voice of the children would not be effectively heard in the court process. In addition, Mr Jarman questioned how the children’s current solicitor could be in a position to assess the children’s capacity to give direct instructions when that solicitor had never met them and where the guardian had only conducted one in-depth discussion with the boys over a year ago. Finally, Mr Jarman predicted that, if the court were to order the return of the children then the children may instruct their own solicitor to apply to set aside the return order.

The application was robustly opposed by Ms Tyler for the children and by Mr Harrison for the father. They pointed to the very substantial delay that has already occurred; this being the fourth final hearing that has been listed. It was submitted that the children had already been adversely affected by meeting a number of professionals and the solicitor had been justified in relying upon Ms Baker’s account of their maturity. Further, in circumstances where the allegations of past abuse have been firmly rejected by the court in the US and by the FtT in this jurisdiction, and yet the children firmly hold to their belief that they have indeed been abused by their father, it was suggested that they may be harmed by being drawn further into this court process and that the children might be less capable of having a separate voice.

We refused the application for reasons given in an extempore judgment at that time. In summary our reasons were:

Our overall conclusion was that, there no longer being a need for joinder due to a parallel asylum process, and where there was no positive evidence that either child had sufficient understanding to give instructions, but where an adjournment to assess their capacity to do so would be wholly contrary to the need for a summary process avoiding delay, the application should be refused.

In circumstances where it is accepted that the children were wrongfully removed from the USA by their mother to the UK on 4 August 2022, the mother resists the making of an order for the return of the children to their home jurisdiction under Art 13(b) and/or on the basis of the children’s objections under Art 13(2). We will take the case with respect to each of these exceptions in turn.

Allegations of sexual abuse

Under Art 13(b), the court ‘is not bound to order the return of the child’ if the mother, in this case, establishes that ‘there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’

In the skeleton argument prepared for this hearing by Mr Jarman KC and Ms Kumar on behalf of the children’s mother, the case under Art 13(b) is limited to the assertion that a return to the US ‘would plainly amount to an intolerable situation’ for the children. No reference is made in the skeleton to any case based on risk of physical or psychological harm. The focus on the ‘intolerable situation’ limb was replicated during Mr Jarman’s oral submissions. Thus, whilst serious complaints are made on behalf of the mother over the procedure and approach adopted by Judge Love in determining that the allegations of sexual abuse were not made out, the mother’s case before this court is not being prosecuted on the basis that the evidence establishes a grave risk of physical or psychological harm to the children as a result of alleged abusive behaviour by their father, and the court was not taken to any of the detailed material with respect to the allegations.

Whilst, as her case before the FtT demonstrates, the mother continues to hold firmly to her belief that the children were indeed sexually abused by their father, the decision not to run that case before this court is understandable. Where, in a Hague case, there are disputed issues of fact in relation to Art 13(b), the conventional approach is that described by Baroness Hale at paragraph [36] of Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, so that the court will consider whether, if the allegations were true, they would establish a grave risk under Art 13(b). If so, then the court will go on to look at how the child may be protected from that risk and, if the protective measures are not sufficient, the court may have to do the best that it can to resolve the disputed issues. It has, however, been held that a court is not bound to follow the Re E approach in every case. In Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720, Black LJ (as she then was) considered the Re E process and concluded (at paragraph [53]):

In Re A (Children) (Abduction Article 13(b)) [2021] EWCA (Civ) 939, Moylan LJ reviewed the approach to be taken in the light, in part, of Black LJ’s approach in Re K. Moylan LJ explained:

In relation to the sexual abuse allegations raised by the mother, it is the case that the competent court in the children’s home jurisdiction has already determined that they are not proved. Whilst Mr Jarman raised what the mother considers to be substantial criticism as to the soundness of the process conducted by Judge Love, her findings are the findings of the relevant US court and there has been no appeal. This court is in no manner an appeal court from Judge Love, and issues of comity strongly suggest that the findings, and process, of the US court are to be respected in this jurisdiction. We do not, however, approach the issue on the basis of concepts of issue estoppel or strict comity. There is no need to do so for, in addition to Judge Love’s clear determination, the mother’s allegations have been held to be ‘unfounded’ on a number of occasions by the child protection agency, the CYS, in the US and by the FtT in this jurisdiction adopting a process that is not criticised in any way.

It is clear that the FtT conducted a thorough forensic analysis of the material relied upon by the mother and found that the evidence did not even meet the lower standard of proof that the Tribunal applied, namely a reasonable degree of likelihood; See Lord Keith of Kinkel in R v SSHD ex p. Sivakumaran (1998) AC 958. Thus, in terms of the confidence with which this court may discount the possibility of the mother’s allegations giving rise to an Art 13(b) risk in the present case, we are at the end of the spectrum described by Moylan LJ in Re A. In the circumstances, there is no need to give further consideration to the sexual or other allegations of abuse made against the father as they can play no part in establishing a grave risk of physical or psychological harm to the children in the context of Art 13(b).

Intolerable situation

The mother’s case under Art 13(b) is firmly put on the basis that there is a grave risk that a return order will place the children in an ‘intolerable situation’. In making good his submissions under this head, Mr Jarman referred to the following elements which are likely to be in play if an order is made for the children to return to the US. The mother’s case is that collectively, and, for some, individually, these elements make it clear that there is a grave risk that on return the children would be placed in an intolerable situation.

Mr Jarman, who relies upon the well-known passage in Re E where, at paragraph [34], Baroness Hale and Lord Wilson held that ‘intolerable’ was ‘a strong word, but when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”’, submitted that the relevant principles were correctly summarised by Baker LJ in Re IG (Child Abduction: Habitual Residence: Article 13(b)) [2021] EWCA Civ 1123 at paragraph 47:

For completeness, it is right to record that in Re A Moylan LJ endorsed the words of MacDonald J in Uhd v McKay (Abduction: Publicity) [2019] EWHC 1239 (Fam) at paragraph 70, namely that ‘the assumptions made [by the court] with respect to the maximum level of risk must be reasoned and reasonable assumptions’ [Moylan LJ’s emphasis]. Moylan LJ continued: ‘If they are not ‘reasoned and reasonable’, I would suggest that the court can confidently discount the possibility that they give rise to an Art 13(b) risk’.

With respect to the relevance of the impact on the children of a decline in the mother’s mental health, Mr Jarman drew particular attention to the judgment of Lord Wilson in Re S [2021] UKSC 10 at paragraph 34:

Mr Jarman drew attention to the helpful summary in the judgment of Cobb J in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415 on the approach to be taken to protective measures. The court must examine what is proposed ‘in concrete terms’ and take into account the extent to which the measures are likely to be effective both in terms of compliance and in terms of the consequences, including remedies, in the absence of compliance. Cobb J spelled matters out by saying that ‘protective measures need to be what they say they are, namely, protective. To be protective, they need to be effective.’

Mr Jarman submitted that the protective measures offered by the father are deficient:

During the oral hearing, whilst the potential for the children to be transferred to the care of their father on arrival in the US in the event of their mother’s arrest remained, the focus of submissions moved to placement in foster care as being the more likely plan, given the children’s extreme reluctance to contemplate having any contact with their father and given the father’s acceptance that, at least in the initial stages, he accepts that they should not come to him.

In the circumstances Mr Jarman submitted that the children would indeed be placed in an intolerable situation on arrival in the US, with their mother arrested on landing, separation from their mother, removal by authorities and placement into a foster home (or even placement with their father). Given the vulnerability in her mental health identified by Dr Ratnam, the mother would be likely to demonstrate distress and this, too, would adversely affect the children.

Mr Jarman was plain that the court was only to be concerned with the situation on return to the US and whether there was a grave risk that that would be ‘intolerable’. The court should not, he submitted, consider the situation were the children to remain in the UK. On that basis it was submitted that the mother’s case under Art 13(b) was made out.

In response, Mr Richard Harrison KC, for the father, invited the court to keep sight of the bigger picture in this case which includes a father, who has not caused any harm to the children, has had a good relationship with them in earlier times and who had an order for joint custody, by consent, with two overnight stays each week. The current situation has only arisen because of the mother’s false claims of abuse and her subsequent extreme reaction to the US court and authorities’ rejection of those claims. He submitted that the mother has perpetrated a very serious form of psychological harm on these two boys, which was to be measured at the top end of the scale. Her act of abduction and arrival in a totally foreign country will have been completely bewildering to the children and will have magnified the harm. Mr Harrison drew attention to the evidence of Ms Baker, the children’s guardian, that serious long-term consequences would ensue for the children if this harm is not addressed. It is the father’s case that if the children remain in the UK, the harm will simply be perpetuated. There will be delay in accessing therapy that has any prospect of succeeding during a time when the children will, in effect, be left entirely under the influence of their mother, estranged from their father, under a false narrative. In those circumstances, Mr Harrison submitted that ‘it would be almost topsy turvy’ to say that it is ‘intolerable’ to remove the children from this source of continuing harm and place them with their father, to whom no blame in terms of harm attaches.

Mr Harrison’s submissions are clearly at odds, in terms of the approach in law, to those of Mr Jarman on the issue of whether or not the court should consider the children’s situation as a whole, including the situation in the UK, when determining whether a return to the US established a grave risk of an intolerable situation. In any event, it is the father’s case that the short-term disruption around the time of return was necessary to safeguard the children’s medium to long-term interests.

Separately, but with the same aim, Mr Harrison submitted that when looking to see if there is a ‘grave risk’, the whole situation must be considered. It could not be right, he said, that the safer course (namely return to the US) can satisfy Art 13(b).

The approach advocated for by Mr Harrison was supported by Ms Tyler for the children’s guardian who urged the court to look at the present circumstances of the children as part of the overall evaluation of whether there was a grave risk that a return to the US would place them in an intolerable situation. They are at risk of harm whether they stay here or are returned, but a return to the US is the less intolerable option. There would be short term upset, but with the prospect of resolution.

In terms of protective measures, the guardian, both in her own evidence and in the submissions of her counsel, continued to hope that the mother would identify a friend or relative, who was known to the children, who could offer them a temporary home in the event that she is arrested on arrival. So far the mother has not put forward any alternative plan. However, if the current working plan, namely that the children may have to go into foster care for a time, is the reality then the guardian does not consider that that establishes an intolerable situation. Ms Tyler pointed out, without contradiction, that in the event of a return order the mother could apply to the Home Office for additional financial assistance of up to £3,000 to cover immediate resettlement costs.

Intolerable situation: discussion and conclusion

There is clear disagreement between Mr Harrison and Mr Jarman over the scope of the ‘situation’ that a court must review under Art 13(b), with the former submitting that the court should look at the whole picture, taking in the situation in the UK and on return to the USA, but the latter arguing that the focus must be limited to the return to the home state. It is right to record that this issue of law only opened up and developed during the course of the oral hearing, and was not trailed in the parties’ skeleton arguments. It is also of note that neither side was able to draw attention to any previous authority on the point. Both of these aspects of the debate should lead a court to be cautious about deciding the point. In a field of law which has been so heavily tilled by lawyers and judges over the past 40 years, it is striking that, if the point is well made, there is no extant authority.

For reasons to which we will turn shortly, it is not necessary to decide the point and we expressly do not do so. We would, however, offer the following observations.

Firstly, the express focus of Art 13(b) is on the grave risk to which the child would be exposed is on ‘his or her return’. Mr Harrison therefore gets no support for his submission from the wording of the Convention, and Mr Jarman is right to stress that, in the course of his summary in Re IG, Baker LJ, at (2) was clear that ‘the issue is the risk to the child in the event of his or her return’.

Secondly, it is well established that, in determining whether an exception under Art 13(b) is established, the court is not undertaking a welfare evaluation. If the assessment of the intolerability of a child’s situation on return was expanded to include a comparison with the situation were they not to return, the court would inevitably be drawn towards reaching a welfare determination, being required to balance the pros and cons, in welfare terms, between the two options, in a way which is wholly contrary to approach to be taken under the Convention.

Thirdly, Mr Harrison’s submissions were founded on the basis that it is established that these two boys are suffering very serious harm ‘at the top end of the spectrum’. A court hearing an application under the 1980 Hague Convention should be cautious and clear over what is, and what is not, established within convention proceedings. It is one thing to hold, as we have done, that the mother in this case has failed to establish a grave risk of harm to the children under Art 13(b), but it does not follow, as night follows day, that the court has therefore found that the children must have suffered, be suffering and be likely to suffer harm as a result of the actions of their mother. Although part of the reasoning of the FtT includes a conclusion that the mother has pursued her theory of abuse in a manner which has been damaging to the children, it was no part of the FtT’s role to make a finding of abuse by her. The FtT judgment, like that of Judge Love, evaluated the mother’s case to determine whether her allegations against the father are made out on the evidence, which included the evidence of the mother, tested in cross-examination. Whilst, in the context of the children’s objections, this court will have to consider exercising its discretion to order a return to the USA, and that will necessarily involve a comparison between staying in the UK or going back to the home state, for the court to hold, as the father’s case on this point requires, that remaining here is more intolerable than going to the States, would require a positive finding against the mother which the court in Hague proceedings is not in a position to make.

We have therefore not accepted Mr Harrison’s invitation to determine the intolerability of the children’s situation should they return to the US by making a comparison with the situation should they remain here.

Turning, therefore, to an evaluation of ‘intolerable situation’ by focusing solely on the children having to return to the USA, it is undoubtedly the case, and is accepted by the father and the children’s guardian, that the experience for the children of going back across the Atlantic with their profoundly reluctant mother will be traumatic to a significant degree. We accept that it is probable that she will be arrested on arrival. We understand that this is likely to involve officers boarding the plane and removing her prior to the other passengers disembarking, and that the children will then be taken into the care of social workers. We do not accept that it is likely that the children will be passed into the care of their father at that stage. Given their response to the guardian when they, erroneously, thought that he might be in the UK, they are likely to display extreme reluctance to see him, let alone be placed in his care. We accept that he intends to suspend the current custody order in his favour, and that he will make it clear to the CYS and other authorities that he does not seek the interim care of the children, but we will require him to do so before any return order takes effect. We join with the guardian in expecting the children’s mother to identify a friend or other trusted member of the community in Pennsylvania who can take on the short-term care of the children on their arrival in the US, but we have decided this issue on the basis that the default position, namely short-term foster care will be provided for them.

Moving on, we accept that the mother is likely to be kept in custody for a time. She has no accommodation readily available to her in the US, and no immediate income. We do, however, accept the assertion made on behalf of the guardian that the mother is entitled to apply to the UK Home Office for provision of a resettlement grant to her to provide the wherewithal for her to rent short term accommodation. As a failed asylum seeker, on voluntary return, provision of help with reintegration costs with support from £1500, depending on individual circumstances is in the experience of UTJ Mandalia, available to support an assisted departure by an application to the Voluntary Returns Service. We accept that the criminal process will be likely to run its course in the US and that there is a likelihood that the mother will receive a short term of imprisonment, however this may be mitigated by the father making it clear, as he has committed to do, that he does not want the mother to be imprisoned, nor would he initiate any criminal proceedings against the mother in respect of the abduction.

Looking beyond the first 2 or 3 months, it is likely that the Family court in the US will be seized of the case and will make its own determination as to the children’s future arrangements.

We have also taken some supportive account of the fact that, in contrast to a case where a grave risk of physical or psychological harm is established on the basis that the children are returning to a situation which will bring them back into contact with an abusive parent, no aspect of what is said to be intolerable in the children’s situation arises from any action or risk of harm relating to their father. The difficult situation that the children are currently in has been entirely generated by their mother’s actions.

On that basis, the children’s situation will be traumatic, stressful and upsetting for them on their return to the US. This will be acutely so on the day of return itself and is likely to remain so, to a lesser degree, for some weeks before medium to long term arrangements can be made. To a degree, there will be upset and even trauma involved in the repatriation of any children who have been abducted and kept away from their home country by a parent who resists a return order. The extent of upset and trauma here is greater because of the likelihood that their mother will be arrested and kept in custody on arrival, with the children moving to foster care, but such circumstances are not without precedent.

It is a regular aspect of the work of social workers and the decisions made by Family judges, that children are placed in foster care when they do not want to go there. Whilst unwelcome and upsetting, to be placed in foster care for a short period, in our view, falls well short of being placed in an intolerable situation – namely one that these children should not be expected to tolerate in the circumstances of this case.

We therefore rely upon and share the guardian’s analysis that the default plan, including foster care before the medium-term arrangements are settled, is not intolerable for these two children. Thereafter, the US court will be seized of the case and will determine the outcome that best meets the children’s detailed needs. On that basis, we hold that the mother’s case under Art 13(b) based on ‘intolerable situation’ fails.

Under Art 13(2) of the Convention ‘the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.’

It is accepted on behalf of the father and the children’s guardian that both boys object to being returned to the USA and that each has attained an age and degree of maturity that justifies taking account of their views. We agree and therefore find that the two ‘gateway’ provisions under Art 13(2) are satisfied. Those two findings move the focus on to the final stage, in which the court has a discretion whether to ‘refuse to order the return of the child’.

The law on the exercise of discretion is well settled. The leading authority is Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55. The test does not require a finding of exceptionality. It is different from an ordinary ‘welfare test’, where the welfare of the child is the paramount consideration; welfare is a factor, but not paramount. Regard must be had to the policy of the convention. The range of factors to be considered may be even wider than in other exceptions to the making of a return order.

Mr Jarman helpfully drew attention to a summary in the judgment of Peter Jackson LJ in Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139:

In his turn, Mr Harrison, who did not disagree with Mr Jarman’s description of the approach to the exercise of discretion, drew attention to a summary of the approach given by Williams J in Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam) at paragraph 50: …

Mr Jarman relied heavily on the list of adverse factors related to a return to the US which are summarised at paragraph [29] above. He submits that with the passage of time, this is not one of those cases in which the overall ethos of the 1980 Hague Convention can be fulfilled. On return, the traumatic experience for the children on the day of arrival, with their mother being arrested and their placement in foster care, are likely to be compounded by the lack of any provision for the mother and children to establish a home back in America as the father’s evidence to this court is completely silent on any proposals for her support. In opposing the exercise of discretion in favour of a return, Mr Jarman maintained his submission that a return would place the children in an intolerable situation and the court should refuse the application.

In his submissions, Mr Harrison repeated the points relied upon in characterising the children’s position in the UK as being more intolerable than a return. In addition to those matters relating to potential harm arising from their mother’s care and her adherence to the accounts of abuse, Mr Harrison pointed out that, now that their asylum claims have been dismissed and there is no further appeal, the mother and children are at risk of removal by the Home Office back to the US. It would be, he submitted, better for the children to go back in a more ordered process following an order of this court, than waiting for the Home Office to enforce their repatriation at some uncertain point. Mr Harrison stressed the importance to be attached to the policy of the Convention and the fact that these children are American and have no ties with the UK. It was, he argued, only by going back to the US that the children had any prospect of restoring their relationship with their father. Mr Harrison submits there has been no acknowledgement by the mother of the harm that she has already caused to these children and that the evidence of the children’s guardian is clear that there is a risk of the harm being perpetuated in the UK. It is, he submits, completely unrealistic to conclude that any therapy and help offered to the children has a prospect of success whilst the children remain in the care of their mother, separated from their father.

The father has offered the following protective measures:

On behalf of the guardian, Ms Tyler submitted that a factor of primary importance is that the children are operating on the basis of allegations of serious harm which have been repeatedly investigated and determined to be unfounded. There is, therefore, evidence that the children are not in possession of the correct factual background, and that their expressed views are neither independent nor authentic.

In her oral evidence, Ms Baker, the children’s guardian, highlighted the following factors:

It is the guardian’s professional opinion that the children’s welfare requires that they be summarily returned to the USA.

In approaching the exercise of our discretion whether or not to order the children’s return to the US, despite their very clear objection to that outcome, we have taken account of all the circumstances and in particular:

In all the circumstances, and notwithstanding the children’s objections, we take the clear view that both A and B must be summarily returned to the USA.

The mother has failed to establish either of the two exceptions upon which she has relied. In the circumstances, the father’s application for a return order under the 1980 Hague Convention succeeds and a return order will be made, subject to further discussion and submissions from counsel as to the detailed arrangements.

While the 1980 Hague Convention requires the summary return of a child who has been wrongfully removed or retained to the country of their habitual residence immediately before the wrongful removal or retention, asylum legislation prohibits the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution (‘refoulement’). The target conclusion date for proceedings under the 1980 Hague Convention is six weeks of the date of the application. There is thus potential for there to be tension between parallel Hague and asylum proceedings if the latter proceedings take a considerably longer time, as was so in the present case.

It is important to be clear that the High Court is not prevented from determining a 1980 Hague Convention application or making a return order with respect to a child refugee were there are parallel asylum proceedings. In G v G [2021] UKSC 9 the Supreme Court gave guidance on the desirable steps to take when there are related Convention and asylum proceedings to ensure expedition and communication. Lord Stephens (with whom Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Burrows agreed) confirmed that the refugee or subsidiary protection claim is exclusively a matter for the Secretary of State, but there is no reason why the merits of any 1980 Hague Convention proceedings cannot be heard and determined prior to a decision in relation to the requests for international protection, even if the factual issues overlap.

The general proposition that “the High Court should be slow to stay an application prior to any determination” is entirely consistent with the aims and objectives of the 1980 Hague Convention including the obligations of expedition and priority. Lord Stephens said:

Six practical steps are identified by Lord Stephens in paragraphs [166] to [177] of his judgment. In summary:

We take this opportunity to draw attention to three particular documents that aim to ensure, as far as is possible, that proceedings under the 1980 Hague Convention can be completed within six weeks of the date of the application notwithstanding that there is a parallel asylum claim.

First, in G v G Lord Stephens endorsed the steps which the Home Office had taken towards establishing a specialist asylum team to which this small group of cases would be assigned. Guidance has been issued by the Home Office (Footnote: ¹) setting out the procedure that is to be followed by staff dealing with asylum casework when processing asylum claims involving children where there are concurrent 1980 Hague Convention proceedings in the High Court. The aim is to outline a clear procedure to be proactive and expedite the processing of straightforward asylum claims within 30 days of the Home Office being notified of the relevant case. Where cases are more complex, the intention is that there are clear lines of communication between the Home Office and the Family Division.

Second, Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings was issued on 1 March 2023 by the President of the Family Division concerning cases involving both child abduction proceedings and protection claims and appeals (Footnote: ²). The aim of the guidance is to ensure that the case management of child abduction proceedings is conducted in a manner that will enhance decision making in both jurisdictions where there are related applications.

Third, the Senior President of Tribunals has also issued guidance specific to appeals where an application under the CACA 1985 has been made in respect of a child who is an appellant or family member of an appellant in a protection appeal brought under the NIAA 2002 (Footnote: ³). The guidance highlights the duty of the parties under the Tribunal Procedure Rules before the First-tier Tribunal and Upper Tribunal to help the Tribunal to further the overriding objective and to cooperate with the Tribunal generally.

The Senior President’s guidance sets out:

Paragraph 30 of the guidance requires that a copy of the promulgated decision of the FtT be sent to the High Court on the same day as it is uploaded to the MyHMCTS website.

We have drawn attention to these three interlinked protocols because they provide for the efficient despatch of both asylum and Hague procedures where there are parallel claims. It is important that these guides, and the detailed requirements that they impose, are well known to each and every lawyer who may be engaged in such a case, whether in the immigration process or in the Family Division. Whilst we have not conducted an audit of the present proceedings in order to establish in detail what went awry, it is apparent that there was a significant failure to follow the procedure that has been laid down, with the result that it is only now, nearly two years after the mother made her asylum claim, that the immigration process has run it course and, separately, a final hearing has been achieved in the Hague proceedings.

The Secretary of State for the Home Department has sole responsibility for both examining and determining protection claims. All decisions relating to protection claims fall within the exclusive powers of the Secretary of State. The court cannot trespass on the Secretary of State’s exclusive function.

In G v G the Supreme Court considered the prohibition of refoulement in Article 33 of the 1951 Geneva Convention. Lord Stephens referred to the protection from refoulement whilst a claim for asylum was being considered by the SSHD provided by article 7(1) of the Procedures Directive (Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status) and Article 21 of the Qualification Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted).

In his analysis, Lord Stephens relied heavily on the Qualification Directive and the Procedures Directive as being effective as a matter of retained EU law, a point that was conceded by the SSHD in G v G. More recently in R (AAA (Syria)) v Home Secretary [2023] UKSC 42, Lord Reed and Lord Lloyd-Jones (with whom the other three SCJ’s agreed) concluded that the Procedures Directive did not have the effect in the domestic law of the United Kingdom as retained EU law [paragraph 148]. They accepted that the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 was designed to repeal retained EU law relating to immigration. Mr Harrison submitted that the decision in R (AAA (Syria)) undermines the conclusion in G v G that, if a return order is made, the court must stay implementation while refugee status is maintained.

Mr Harrison relied upon Re S (Children) (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843, in which the Court of Appeal held that the prohibition on removal (which commences when a person makes a claim for asylum and ends when the SSHD gives notice of the decision on the claim under s15 of the Immigration and Asylum Act 1999) was directed towards the immigration authorities alone and did not create any exception to the obligations arising under the 1980 Hague Convention.

In the present case, the mother made a claim for international protection with the children as dependents. As we have said, decisions to refuse the claims made have been made by the Secretary of State. The subsequent appeals to the FtT were dismissed by a panel of FtT judges for reasons set out in their decision promulgated on 25 March 2024. Permission to appeal to the Upper Tribunal has been refused by the FtT and on renewal, by the Upper Tribunal. The question whether the implementation of any return order should be stayed does not, therefore, arise in these proceedings and we are consequently not required to address the prohibition of refoulement in Article 33 of the 1951 Geneva Convention that was considered in G v G.

Our attention has however been drawn to the decision of Mrs Justice Knowles in A Local Authority v A [2024] EWFC 110 (Fam). Knowles J referred to the decision of the Court of Appeal in Re S (Children) (Child Abduction: Asylum Appeal) and to the reasoning of Lord Stephens in G v G. She also drew upon the obiter observations made in a judgment of Keegan LCJ in the Court of Appeal in Northern Ireland, In the matter of AB (Minor) [2023] NICA 37, in which it was suggested that a stay of implementation of return of a child to Switzerland should not have been granted pending the determination of the asylum claim in proceedings concerning a child who was habitually resident in Switzerland, and who had been abducted to Northern Ireland by his mother (an Eritrean national) who then made a claim for asylum, naming him as her dependent. The circumstances in AB (Minor) were unusual because the international protection claim was based on a fear of persecution in Eritrea where the return of the child was to Switzerland and the Swiss authorities had provided reassurance that the mother and child did not face refoulement and would be afforded sufficient protections and support in Switzerland. Mrs Justice Knowles said:

Although we recognise the force in what is said by Mrs Justice Knowles and in the submissions made by Mr Harrison, and by Ms Tyler on behalf of the children’s guardian in this respect, we have heard no submissions from the Secretary of State as to whether the statutory framework post-Brexit has an impact upon the protection from refoulement whilst a claim for asylum remains outstanding before the Secretary of State and on appeal to the Tribunals. There is no need to decide the issue in the present case, and we do not do so. It is, however, in our judgment, a matter that warrants full argument in an appropriate case.

We would, however, stress that, if parties act, as they must, in accordance with the guidance that has been issued since the decision of the Supreme Court in G v G, and to which we have made reference in paragraphs [75] to [79], there is no reason why, in all but exceptional cases, any claims made to the Secretary of State and any proceedings dealt with under the 1980 Hague Convention, cannot be completed within (or close to) six weeks of the date of the application.