Overview: International Law

Abstract

In the 2011-12 legal year, the United Kingdom Supreme Court decided six cases related to international law. InRe S (a Child),1 the SupremeCourt considered an appeal by amother against an order of the Court of Appeal that she immediately return her child, aged two, to Australia, made pursuant to Article 12 of the Hague Convention of the Civil Aspects of International Child Abduction (Hague Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which gives effect to the Hague Convention in domestic law. The issue before the Supreme Court Justices was whether they could decline to order the child's return to Australia on the basis of nothing more than disputed allegations of domestic abuse made by the mother. The Supreme Court also elaborated on the correct approach to the subjective perception of risk held by a parent and rejected the Court of Appeal's contention that a parent's anxieties must be realistically and reasonably held. Rather, a defence under Article 13(b) of theHagueConvention could bemade on the basis of the abducting parent's subjective anxieties where those anxieties would be likely to destabilise the parenting of that child to the point at which the child's situation would become intolerable. The Supreme Court unanimously allowed the appeal. In R (on the application of ST (Eritrea)) v Secretary of State for the Home Department,2 the Supreme Court considered whether Article 32 of the 1951 Refugee Convention applied only to refugees who had been given the right under the domestic law of the contracting state to remain within that state's territory or whether the words `lawfully present in the territory' might be interpreted more broadly. The Supreme Court unanimously dismissed the appeal, holding that `lawfully' `must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state'.3 In the case at hand, `lawfulness' was defined by section 11(1) of the Immigration Act 1971, under which the appellant was not deemed to have entered the UK as she was temporarily admitted.