The Weekly Round-up: expeditious return vs non-refoulment

22 March 2021 by Alethea Redfern

In the News:

Last week, the Supreme Court considered an interesting interplay between two competing obligations of the state: on the one hand, the duty expeditiously to return a wrongfully removed or retained child to his home jurisdiction under the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”); on the other, the principle that refugees should not be refouled, meaning expelled or returned to a country where they have a well-founded fear of persecution.

The parties to G (Appellant) v G (Respondent) [2021] UKSC 9 are the divorced parents of an eight-year-old girl (“G”). G was born in South Africa, and was habitually resident until G’s mother wrongfully removed her to England, in breach of G’s father’s custody rights. G’s mother fled South Africa when, after separating from G’s father and coming out as a lesbian, her family subjected her to death threats and violence. On her arrival in England, she applied for asylum and listed G as a dependant on her asylum application.

G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. At first instance, Lieven J held the application should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that the High Court was not barred from determining the father’s application or making an order for expeditious return

The mother’s appeal to the Supreme Court considered three issues:  

• Does a child named as a dependant on a parent’s asylum application have any protection from refoulment?
• Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement?
• Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?

The Supreme Court substantially allowed the mother’s appeal to the extent that a child named as a dependant on her parent’s asylum request who can objectively be understood to have made a request for international protection. Such a child has protection from refoulement pending the determination of that application. Until then, a return order in the 1980 Hague Convention proceedings cannot be implemented.

In Other News:

• Amid the outcry following Sarah Everard’s murder, No 10 has announced “immediate steps” to improve safety for woman and children, including an additional £25m for better lighting and CCTV. Labour and women’s charities have criticised the measure for not being grounded in recommendations from experts or victims.
• Mikołaj Barczentewicz, of the UK Constitutional Law Association, has conducted an empirical study of the gender of counsel before the Supreme Court between 1977 and 2020. The study indicated slow progress towards gender equality among senior counsel, but more encouraging figures for junior counsel. He posited that this was “a reason to believe that the situation will improve also among the more senior counsel.”
• The Home Office has announced that anyone caught obstructing or impersonating a fire inspector, and building owners who breach fire safety regulations, could face unlimited fines under new measures brought in following the Grenfell Tower fire in 2017.

In the Courts:

• Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8: the Supreme Court unanimously decided that workers who provide sleep-in cover are not entitled to be paid the minimum wage for each hour of their sleep-in shift. The case was brought by two care workers seeking to overturn a 2018 Court of Appeal ruling. The SC overruled a number of previous cases in deciding that it could not conclude that the employees were working for the whole of their shifts. If the claimants had won, care providers feared a £400m bill for backpay in an industry already stretched to breaking point; now that they have lost, the government is under pressure to reform care laws.
• Blundel & Ors, R (On the Application Of) v Secretary of State for Work And Pensions [2021] EWHC 608: Mr Justice Kerr held that a blanket application of a DWP policy which automatically deducted universal credit allowance to pay off court fines breached a law requiring benefits officials to use their discretion in light of claimants’ vulnerability and ability to repay. The claimants, four highly vulnerable individuals, were left with £52 a week to live on and were unable to meet the cost of food and heating. The policy itself was not quashed, as there were “many parts of it that are good in law and untouched by this judgment.”
• Parfitt v Guy’s and St Thomas’ Children’s NHS Foundation Trust & Anor [2021] EWCA Civ 362: in a profoundly sad case, which closely echoes the Charlie Gard and Tafida Raqeeb cases, Lord Justice Baker held that Poole J’s decision that it was lawful and in the best interests of Pippa Parfitt, a five-year-old child in a persistent  vegetative state, to withdraw ventilation. With each case, it has been increasingly settled that in circumstances such as these, the law vests responsibility for decision in the court, not the parent.

On the UKHRB:

• Anurag Deb explains how Re B’s application [2020] NIQB 76 provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences – in this instance, in the context of the Troubles in Northern Ireland.
• Aaron Gates Lincoln argues that, in the context of the ongoing pandemic, migrant NHS workers should be granted indefinite leave to remain.
• In the latest episode of Law Pod UK, Emma-Louise Fenelon speaks to Marina Wheeler QC about the burgeoning field on mediation.
• Marina Wheeler QC examines three court of protection cases in which the relatives of care home residents lacking capacity objected to their receiving the Covid-19 vaccine.
• Rosalind English sets out the ruling handed down by an Amsterdam Court that Ola (a ride-sharing app similar to Uber) must be more transparent the data it uses to make algorithmic decisions about suspensions and wage penalties.  
• Anurag Deb considers the political reasons that anticipated abortion reforms in Northern Ireland have failed to materialise after two years and two statutory instruments.