The parents lived together in South Africa and had a child in 2012. The child had always been habitually resident in South Africa. The parents separated in 2014. The child lived with the mother but had regular contact with the father.
The mother identifies as lesbian. She alleged that after separating from the respondent and coming out, her family subjected her to death threats and violence.
In March 2020 the mother wrongfully removed the child and took her to England, in breach of the father’s rights of custody under South African law. On her arrival in England she applied for asylum on the basis of her fear of persecution by her family. She listed the child as a dependant on her asylum application. The child did not make an asylum application in her own right.
The father made an application for return under the 1980 Hague Convention. The mother opposed the father’s application, relying upon Article 13(1)(b) and 13(2).
The Court considered the relationship between the provisions protecting refugees from refoulement, that is expulsion or return to a country where they may be persecuted, and the requirement to return a child under the 1980 Hague Convention to the country from which the child or the child’s parent has sought refuge.
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