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The duty to expeditiously return under the Hague Convention vs the principle of non-refoulment in asylum law
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 9are 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
Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.
On Monday the Ministerial and other Maternity Allowances Act 2021 came into force, allowing the Attorney General, Suella Braverman QC, to be the first minister to take maternity leave. The Act grants cabinet ministers six months’ maternity leave whilst retaining their government post, whereas in the past MPs would have to resign to take time off to give birth. The Act is not without its critics, including those saying it should apply to MPs outside the Cabinet, and include provisions for paternity, adoption and shared parental leave. There was also heated debate in the Lords on the gender-neutral phrasing of the original Bill, with the Lords voting to replace ‘person’ with ‘mother’ in the final Act, despite its potential exclusion of trans and non-binary people.
A new offence of non-fatal strangulation has been included in the Domestic Abuse Bill following a campaign by the Centre for Women’s Justice, other organisations and the Victims’ and Domestic Abuse Commissioners. The Bill is passing through the House of Lords and now includes the offence of intentionally strangling another person or otherwise affecting their ability to breathe. Currently perpetrators are usually charged with common assault, with a maximum of just six months in jail. The Bill also includes amendments strengthening the laws on ‘revenge porn’, making it an offence to threaten to share intimate images of a person with the intention to cause distress, and extends the coercive control offence to situations where perpetrators and victims do not live together. The Victims’ and Domestic Abuse Commissioners welcomed the amendments but urged the Government to go further in creating a defence for people who commit offences due to domestic abuse.
On Friday the Women and Equalities Committee published the Government’s response to its report on the impact of coronavirus on BAME people, in relation to inequalities in health, employment, universal credit, housing, and the no recourse to public funds policy. The Committee’s inquiry found that comorbidities in BAME people place them at risk of experiencing coronavirus more severely and with graver health outcomes. Specific risks to BAME people include difficulty in accessing Government guidance, the disproportionate impact on BAME people of zero-hour contracts and being denied furlough, difficulties in applying for Universal Credit, and overcrowded housing due to housing inequality.
The Department of Health and Social Care on Friday published new guidance for care homes and visitors, to take effect on 8 March. This is not a change in the law, as visits to care homes have never been unlawful, but the new guidance sets out the government’s advice on safe visiting practices. This is that:
The UK has seen an increasingly falling rate in arrests and prosecutions for cannabis possession over recent years, as police forces no longer see the point in enforcement. The Liberal Democrats have campaigned for its legalisation since 2016, and the first medically-prescribed cannabis was permitted in the UK in 2018. However, crucial NHS cannabis-based medicines for epilepsy remained prohibitively difficult to access for another year, with the majority of self-reported ‘medicinal’ users still turning to the black market. With growing numbers of US states, alongside Canada and South Africa decriminalising recreational use over the past three years, some UK MPs believe that cannabis legalisation will occur in the UK within five to ten years.
A number of legal developments put free speech under the spotlight this week.
First, media commentators disputed the significance of the Duchess of Sussex’s successful privacy claim against Associated Newspaper Limited, covered in last week’s round-up. A leader in The Times issued the grave warning that ‘Mr Justice Warby’s judgment creates a precedent that will have a chilling effect on the media,’ not least ‘given that what was at stake…were issues that affect society as whole’. Some media lawyers took a dim view of such alarm, suggesting there was little to be surprised at in Warby J’s carefully reasoned conclusion that no legitimate public interest was to be found in publishing the intimate contents of a daughter’s letter to her father.
Then came Education Secretary Gavin Williamson’s announcement of a proposed free speech law targeting universities, designed to reverse ‘the chilling effect on campuses of unacceptable silencing and censoring’. Its reception was mixed to say the least. The scheme would impose a statutory free speech duty on universities and student unions, enabling ‘no-platformed’ academics, students and visiting speakers to sue for compensation. Potential infringements would be investigated by a mandated ‘free speech champion’, empowered to recommend various forms of redress. While many academics welcomed the basic principles behind the proposal, others complained that it fomented “phantom fears” of a “cancel culture” crisis.
Having been temporarily suspended in early January as a result of an increase in COVID-19 cases, the Grenfell Tower Inquiry hearings resumed on 8 February 2021. The fire killed 72 people.
The hearings are being conducted remotely using a Zoom-based video platform, which the Inquiry describes as “a temporary measure to be used only for as long as absolutely necessary”.
The Inquiry conducted Phase 1 of the investigation, which focused on the events of the night of 14 June 2017, on 12 December 2018. Phase 2 is currently underway, which examines the causes of these events, including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified by Phase 1.
The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage. This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law. Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’. During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work.
For several years, China has been enacting a policy of repression and brainwashing against over a million Uyghur Muslims in its northwest Xinjiang province. Reports include instances of forced sterilisation. Its hundreds of ‘re-education’ camps have been revealed as places where contact with relatives, the ability to pray and even when to use the toilet are tightly controlled. A leaked document reveals the state’s use of algorithms to score inmates on a ‘behaviour-modification’ points system, which tells guards when to mete out rewards and punishments. Absent from their homes, Uyghur places of worship are secretly bulldozed en masse.
On Tuesday, the UK government announced new rules that seek to prevent UK companies profiting from forced Uyghur labour. Companies will have to demonstrate that their supply chains are free from slavery. Public procurement rules will also attempt to exclude suppliers with links to human rights violations. This new policy appears to implement Key Proposal no. 5 of the newly created China Research Group, a think tank set up by Tory MPs to ‘counter violations of international universal human rights’. The ERG-style group was formed after China’s coronavirus cover-up operation became clear.
Last week’s round-up looked at the measures and messaging of the UK’s latest lockdown. This week we ask what it means for vulnerable children and victims of domestic abuse. Are sufficient legal safeguards in place?
For vulnerable children, it unfortunately seems not. On Wednesday, a Guardian investigation revealed that thousands of children were sent to unregulated care homes last year, while local authority provisions were stretched throughout many months of restrictions. These homes include supported accommodation facilities for over 16s, which are not subject to any inspections by regulators in England and Wales. The Children’s Commissioner for England Anne Longfield has warned that the children’s care system has been ‘left to slip deeper into crisis, seemingly unable to stop some of the most vulnerable children from falling through the gaps.’
Rampant spread, fuelled by a combination of a new variant that is around 50-70% more transmissible, plus a lifting of restrictions at the beginning of December, brings us into another national lockdown.
In many ways, Prime Minister Boris Johnson’s first address of 2021 felt unpleasantly like a return to early 2020.
The original “Stay Home” messaging made a comeback. The Prime Minister was deliberately vague about how long lockdown would last. Big Brother Watch criticised the government for “yet again … evading the democratic process” by denying MPs a meaningful vote on the new national restrictions prior to their televised announcement to the nation, or their coming into force. The new guidance differs from the Tier 4 guidance in emphasis, if not substance.
Ever the optimist, the Prime Minister was keen to emphasise “one huge difference” between this lockdown and the first one: the UK is “rolling out the biggest vaccination programme in its history”. He also managed to get in a jab at the UK having delivered more vaccines than the rest of Europe combined.
There were other, more subtle differences, as No. 10 tweaked its messaging in light of past mistakes.
This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.
Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.
On Thursday, Harry Dunn’s family were granted permission to appeal against the High Court ruling handed down on 24 November, which held in no uncertain terms that Mrs Sacoolas did enjoy diplomatic immunity at the time she killed 19 year-old Harry Dunn while driving on the wrong side of the road in August of last year. The US state department has refused to waive her immunity under Article 32 of the Vienna Convention on Diplomatic Relations, stating that to allow the waiver, and thereby the extradition request that would inevitably follow would set an “extraordinarily troubling precedent”. The arrests of diplomats Michael Kovrig in China and Rob Macaire in Iran over the last year highlight the continued importance of the inviolability of diplomatic agents serving abroad. However, where there has been an unlawful killing by a family member of an agent, natural inclinations of justice are upset by the failure of a longstanding diplomatic ally to simply do the right thing.
On Monday 23rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system.
Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:
Tier 1 (Medium Risk):
The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
Pubs and restaurants must shut at 11pm
Limited numbers of spectators may be permitted at sports and music events
Tier 2 (High Risk):
People from different households may not meet indoors
The ‘Rule of Six’ will apply for outdoor gatherings
Pubs and restaurants must shut at 11pm
Alcohol can be served only alongside a substantial meal
Tier 3 (Very High Risk):
People from different households may not mix indoors or outdoors in hospitality venues or private gardens
People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
Pubs and restaurants must close except for takeaway and delivery services
Travelling into and out of the area is discouraged
There is a long history of crossover between lawyers and politicians; more members of parliament come from the law than almost any other profession. But the relationship – never totally tranquil – has become more strained in recent years.
On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.
In oversimplified terms, the restrictions in place in each tier are as follows:
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