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Mother’s asylum file cannot be disclosed in child abduction case

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It must be the case that quite a number of cases that concern the abduction of a child to this country also involve an asylum application by the abducting parent. Sometimes, as we will see in a moment, the asylum application can be of direct relevance to the abduction, sharing some of the same facts. In such a case the other parent, who has made an application for the summary return of the child to their ‘home’ country, may seek to have the asylum file disclosed to the court dealing with that application.

This was the situation in the recent Hague Convention on Child Abduction case H (A Child).

The facts of the case were that the mother and father are both nationals of an unidentified country, ‘DD’. They married in 2009 and have one child, a boy, now aged seven. In February 2016 the mother brought the child to this country. She accepts that this was a wrongful removal from DD, but claims that she left to escape the father’s abuse.

The mother made a claim for asylum, arguing that she had a well-founded fear of persecution in DD, on the basis of her membership of a particular social group, being a woman who was a victim of domestic violence. The claim was eventually allowed, the tribunal judge accepting her claim that she could not safely relocate with her son in DD, due to a real risk that both she and her son would face ill treatment at the hands of her husband.
Further to this, the mother also made an asylum application on behalf of the child, and that application was still outstanding.

Meanwhile, in July 2016 the father made an application to the DD authorities for his son’s return, but for some reason it took over two years to transmit that request to the UK, his Hague Convention application eventually being issued in December 2018. Within the application the father sought an order for disclosure of the mother’s and the child’s asylum files. That application was opposed by the mother. The matter fell to be heard by Her Honour Judge Corbett in the High Court.

The father argued that because of its basis the asylum claim was relevant to the Hague Convention application, that the asylum claim had been made on a false basis, and that the grant of asylum on a false basis undermined the mother’s argument that the child was settled here. The mother argued that the grant of asylum was properly made on the basis that the father was a perpetrator of domestic abuse, and she was particularly concerned that the father would become aware of the identity and whereabouts in DD of individuals who assisted her in her asylum application. In any event, the father had already received a copy of the decision and reasons of the tribunal judge, and the father did not need, and should not receive, any more disclosure.

Judge Corbett found in favour of the mother. She was satisfied that the impact upon the integrity of the asylum process, if disclosure to the father were ordered from the mother’s asylum file, outweighed any impact on the human rights of the father which might arise from non-disclosure. This was even more acute if there was disclosure of the child’s pending asylum application. The father had available to him a large amount of documentation – he had access to material by which he could pursue his application under the Hague Convention.

Further, Judge Corbett did not accept that full disclosure of the asylum documents was needed to decide the question of the child’s actual settled status in this country, given the amount of information already available to the father and the court. He would be properly engaged in the process by consideration of the material already available, and this would maintain the confidentiality of the process that the mother underwent. The material in the mother’s case and the child’s pending case were linked. If there was disclosure to the court of an asylum application and documents even before it had been lawfully determined, that would have an extremely negative effect upon the public trust in the asylum process.

Accordingly, the father’s application for disclosure of the mother’s asylum file was refused.

The full judgment can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers.

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