The 1 October 2021 judgment of Lady Wise in the Outer House case of H v W and the 5 October 2021 judgment of the Inner House in A v B have provided innovative insights on the interaction between asylum status and the application of the Children (Scotland) Act 1995 in Scottish courts.
I have written a detailed commentary in relation to these two cases which has been published this month in the 2021 Scottish Law Times. A link to that commentary is here but the position, in summary, is as follows:-
H v W
Lady Wise concluded in this case that the reasons behind the wife and her children’s asylum status in the UK required to be taken into account, but were not the primary factor, in deciding whether or not to grant a residence order and a specific issue order for the children to return to live in Dubai with their father.
This case was litigated despite all parties and the court being aware that the father, if successful, could not seek to enforce any order for relocation unless the Secretary of State then took any such decision in his favour into account when reviewing the mother’s and/ or the children’s asylum status. Crucially, the existence of the children’s asylum status did not prevent Lady Wise hearing the evidence. In her application of the 1995 Act she concluded that their asylum status was only part of the information to be taken into account when deciding what was in the best interests of the children. What is clear from her judgment is that had the evidence before her tipped the balance in favour of relocation being in the best interests of the children, (which she did not) she would still have considered it appropriate to make such a decision notwithstanding the fact that her decision could not override that of the Home Office. She was prepared to make a decision which may have been unenforceable.
A v B
The Inner House decided that the Lord Ordinary’s approach at first instance was wrong; he had decided that there was no practical purpose in litigating the matter of the parents’ conclusion for a specific issue order for relocation given the children had been granted asylum in the UK.
The fact that the Inner House, in A v B, disagreed with the Lord Ordinary’s decision not to allow the case to proceed on the basis that to do so would have no practical purpose, is in point with the decision of Lady Wise. The Inner House went so far as to suggest that the outcome of a case which had gone through the rigours of evidence and high-level decision making, may be of interest to the Secretary of State.
1995 Act and matters relating to asylum of children
What is clear from these cases is that in any case which requires the 1995 Act to be considered, the court must not refuse to hear evidence on any crave or conclusion for relocation to a country from which a child has been granted asylum.
Until these judgments were delivered, the interplay between asylum status and the application of the 1995 Act had not been considered in Scotland. What is clear is that the practical realities of whether or not a child can be returned to a country from which asylum was granted do not, in the eyes of our senior judges, override or conflict with the application of the paramountcy principle when it comes to the best interests of a child.
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