E.M. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2008] 3 W.L.R. 931

INCADAT legal file Hague parental abduction

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The proceedings, which were in the context of immigration and asylum law rather than child abduction law, related to a Lebanese mother and child, the latter born in July 1996. They had travelled to the United Kingdom in December 2004 ostensibly to escape the consequences of the Lebanese family justice system.
Once in the United Kingdom, the mother attempted to claim asylum. This was first refused in February 2005 which set in train a series of appeals and challenges which culminated in a hearing before the House of Lords to determine the application of the European Convention on Human Rights to the facts of the case. In this final hearing, the child was afforded separate representation.
The salient facts related to the situation the mother and child had left in Lebanon and the situation which they would likely face were they to be sent back. The parents’ marriage had been characterized by significant acts of domestic violence. On the day of the child’s birth, the father and his family attempted to remove the child to Saudi Arabia. These actions were thwarted and the father had not seen the child subsequently.
The mother then divorced the father. The father retained custody of the child but the infant was placed in the care of the mother until he reached the age of 7, whereupon he was automatically to be placed in the care of the father, or another male member of the paternal family. No judicial discretion could be exercised to allow the child to remain in the care of the mother. The only issue that could be the subject of judicial consideration was the appropriateness of allowing the mother contact during supervised visits.
The mother’s case before the Court of Appeal and thereafter the House of Lords was that were she to be removed to Lebanon on the decision of the Secretary of State for the Home Department, then her right to respect for her family life would be infringed and would be so on a discriminatory basis attributable to her being a woman.
As a “foreign case” – the only conduct of the British authority being challenged being the decision to remove her to a non-Convention State where she would suffer the previously identified consequences – the burden on her was accepted as being extremely heavy.
Moreover, it was noted that the test had never been satisfied in respect of any of the qualified Convention rights in any reported ECHR decision. (Lord Hope clarified that in the absence of very exceptional circumstances aliens could not claim any entitlement under the Convention to remain in the UK to escape from the discriminatory effects of the system of family law in their country of origin).
After considering a variety of domestic case law and making reference to ECHR judgments, the Court of Appeal ruled unanimously that the mother had failed to establish a breach of Article 8. In this a distinction was drawn between two of the criteria which had been applied in such cases, namely whether there had been a “flagrant denial of the very essence of the right” or a “complete denial or nullification” of the rights protected by Article 8.
The former was held to be quantitative, the latter qualitative. Two members of the Court of Appeal panel found that there had been a flagrant breach, but all agreed that this right of the mother had not been completely denied for she could enjoy some form of family life with her son. The mother was subsequently granted leave to appeal to the House of Lords.