Asylum not a ground for abduction

In re H (a minor) (child abduction: mother’s asylum) FD TLR 8 August

Although Pakistan has not acceded to the Hague Convention on the Civil Aspects of International Child Abduction 1980, in January 2003 the President of the Family Division and the Chief Justice of Pakistan signed a protocol of agreement providing that ‘in normal circumstances the welfare of a child is best determined by the courts of the country of the child’s habitual/ordinary residence’. Although the mother had been granted asylum in the UK on the basis of a well-founded fear of persecution, this did not enable her to unlawfully keep her son in the UK, even though the father never had the benefit of a custody or residence order in Pakistan, nor had there been any order in Pakistan restraining removal of the child. The mother contended that to allow the father to take the son back to his country of habitual residence would be tantamount to enforcing the mother’s return, contrary to her rights which flowed from a refugee status lawfully established by her. Nevertheless, this was overridden by the provision in s1(1) of the Children Act 1989 that when a court determined any question with respect to the upbringing of a child, his welfare should be its paramount consideration. Without acknowledging any need for them, the father had offered undertakings to the court to put into place a raft of temporary protective measures for the mother and his son in the event of their return together in Pakistan. Accordingly, the Court ordered the return of the child to Pakistan.