Rotherham Borough Council v M & Ors

These are care proceedings in relation to A, born on 23 June 1999, and his younger brother E, born on 11 October 2000. The family comes from a non-European country that I shall refer to as Country X. The family — the two boys, their father and their mother — entered the United Kingdom on 14 February 2002.

Father applied for asylum on 27 February 2002. Mother and the two children applied for leave to remain in the United Kingdom as dependants of the father. All four applications were refused by the Secretary of State for the Home Department. The father’s SEF interview took place on 27 March 2002. It was supplemented by a letter written by his solicitors to the Home Office on 3 April 2003. The same day the Secretary of State gave notice of his decision to refuse the application for asylum and to issue removal directions. The reasons for the Secretary of State’s decision were set out in letters dated 18 April 2002. The Secretary of State considered that the reason the father had given for claiming asylum was not one that engaged the United Kingdom’s obligations under the United Nations Convention (1951) and Protocol (1967) on the Status of Refugees (“the Geneva Convention”). Paragraph 14 of the letter addressed to the father provided in standard form that “You are now required to state any reasons for staying in the United Kingdom which were not previously disclosed”. The same statement was contained in each of the three other letters.

Father appealed. His statement of additional grounds claimed that his removal would be contrary to the Human Rights Act 1998 and in breach of articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”). His appeals under the Geneva Convention and the European Convention were both dismissed by an Adjudicator, Dr A E Thorndike, on 27 September 2002. The Adjudicator, in paragraph 29 of his determination and reasons, found the father “not to be credible at all” and his “whole account to be concocted”.

Father applied to the Immigration Appeal Tribunal for leave to appeal. By now he had different solicitors acting for him. They prepared an application for leave dated 14 October 2002. The application was dismissed by the Tribunal (Mr A R Mackey, Vice President) on 8 November 2002. There was no application to the Administrative Court for permission to apply for judicial review.

On 6 January 2003 the same solicitors wrote to the Home Office making further representations and inviting the Secretary of State to either reconsider the matter or permit the father to remain in the United Kingdom on an exceptional basis. Those representations were considered and rejected in a letter dated 8 January 2003 The father made no attempt to challenge that decision of the Secretary of State, whether by appeal or by application for judicial review.

On 16 January 2003 the father was detained by the Home Office with a view to being taken to Harmondsworth Immigration Removal Centre. By then removal directions had been given for the family’s removal from the United Kingdom on 18 January 2003. The same day (16 January 2003) the father, by then in custody at a police station, was seen by the local authority’s worker, JW. She is a support worker in the local authority’s asylum team who had been working with the family since February 2002, assisting them and helping them to access appropriate services. She describes him as being extremely distressed and unable to think clearly. “He expressed concerns that his wife was depressed and that she had had thoughts about taking her life.” He then made various other statements which JW understandably, and as it seems to me reasonably, understood as implying that he would kill himself and his family She tells me “I have never seen anyone look so fearful as he did at this time.” JW took the mother to the police station to visit her husband. Whilst there he told her that the appeal process was exhausted JW took mother home Later the same evening the mother took an overdose of paracetemol and benylin and was admitted to hospital. The emergency duty team arranged care for the children overnight with a local authority foster parent — in fact with JW.

On 17 January 2003 the father was moved to the removal centre at Harmondsworth and placed on suicide watch. Mother was discharged from hospital. Medical examinations of the mother on 17 January 2003 had concluded that she was not suffering any mental illness but was in fear of the deportation order being carried out. She was considered fit for discharge from hospital Arrangements were made for her to be transported to Harmondsworth the next day (18 January 2003) to see her husband with the children. At 8pm that night the local authority made an ex parte application to a circuit judge who granted an interim care order in relation to bath children until 21 January 2003 and also, for the same period, an emergency protection order which, as drawn, was expressed as authorising the local authority “to prevent the children being removed from . . .” — the remainder of the sentence being left incomplete.

Care proceedings were issued in the county court on 20 January 2003, the application being supported by a statement from a social worker, KS, who explained the basis of the local authority’s application as being that in the light of the threats made by father on 16 January 2003 there were reasonable grounds for believing that the children were likely to suffer significant harm if reunited with their parents. The local authority filed care plans prepared by KS dated 20 January 2003. At that stage the father and mother were at Harmondsworth and the children were in local authority care. The care plans contemplated that the children would be placed together with culturally appropriate foster carers pending an assessment of the risk posed by the parents, father in particular. The care plans recorded the local authority’s “unresolved concerns regarding the risk of significant harm [the father] poses in light of his threats to kill himse1f, his wife and children” and its uncertainty as to whether he would continue to be detained and, if so, where.

On 21 January 2003 the same Circuit Judge extended the interim care order until 29 January 2003 and transferred the case to the High Court.

On 23 January 2003, the search for suitable foster carers having proved unsuccessful, the mother and children were reunited and moved to live in a family home supervised by the local authority. The father remained in detention. Also on 23 January 2003 the local authority filed revised care plans reflecting these new arrangements but again recording its “unresolved concerns regarding the risk of significant harm [the father] poses in light of his threats to kill himself, his wife and children" and its uncertainty as to whether he would continue to be detained and, if so, where.

On 28 January 2003 the local authority prepared an assessment plan proposing (a) a seven week assessment of mother and father by social workers (this assessment to cover the family history and functioning, parenting capacity and the children’s development needs) and (b) an assessment of father by a forensic psychologist.

On 29 January 2003 there was a directions hearing before Holman J. The judge extended the interim care order until 5 March 2003. Having spoken on the telephone to both the Treasury Solicitor and Cafcass Legal and Spec’a¹ Casework (“Cafcass Legal”), Holman J appointed an officer of Cafcass Legal as children’s guardian joined the Secretary of State as a party and gave certain further directions.

In accordance with the directions given by Holman J the Secretary of State filed, in the form of a witness statement by one of his officials dated 26 February 2003, a succinct position statement setting out the immigration position in respect of the father, mother and children Helpfully attached to that statement was a copy of R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293. The Secretary of State’s position was summarised as follows:

“[Father] and his dependants currently have no legal basis of stay in the United Kingdom and are liable to be removed. The Secretary of State’s view is that the actions of [father] are a deliberate attempt to frustrate the removal process and that the family should either be removed as a unit under escort or alternatively [father] be removed independently of the children thus preventing any further opportunity of harm.”

He added:

“The Secretary of State for the Home Department deals with every case on its own merits within the context of the immigration rules. There is no definitive policy on the approach to be adopted where there is an overlap between family and immigration law.”

At the same time, and in further compliance with Holman J’s order, a skeleton argument on behalf of the Secretary of State prepared by his counsel, Ms Jenni Richards, was also lodged, dealing with the relationship between immigration and asylum law and the Children Act 1989 in the circumstances of this case.

The mother filed a witness statement dated 4 March 2003.

On 5 March 2003 there was another directions hearing, this time before Singer J. He extended the interim care order until 2 April 2003 (it has since been extended under the usual automatic procedure without attendance of the parties at court). He adjourned the matter “for a hearing of the issue of whether the children will be at risk of significant harm in the present circumstances and if so as to the extent of that risk”. He gave permission for the local authority and the parents to instruct Dr Hayley Dare, a clinical psychologist, to report on that issue. He directed that “the parents shall file any evidence relating to [Country X]” by a date specified in the order. His order also provided that Cafcass Legal should not for the time being be obliged to carry out any duties of the children’s guardian other than to assist the parties in the drafting of a letter of instruction to Dr Dare. That letter was dated 25 March 2003. Dr Dare met and interviewed father for approximately eight hours on 27 March 2003.

Following Singer J’s order further documents have been filed: a witness statement by the father, Dr Dare’s report dated 25 April 2003, a further statement by the mother dated 29 April 2003, and a statement by JW also dated 29 April 2003.

In accordance with Singer J’s order the matter came on for hearing before me on 6 May 2003. The Treasury Solicitor had asked that the case be listed if possible before a judge of the Division who is also a nominated judge of the Administrative Court and the Clerk of the Lists had been able to meet that request.

The local authority was represented before me by Mr Roger McCarthy QC,the father by Mr Andrew McFarlane QC and Ms Jane Probyn, the mother by Ms Martha Cover and Ms Sarah Phillimore, Cafcass Legal by Mr Robin Barda, and the Secretary of State by Ms Jenni Richards. At the end of the hearing I announced that I would reserve my judgment. I now (16 May 2003) hand down judgment.

I turn to the evidence: first to Dr Dare’s report on the father. It is a careful, detailed and impressive document. No-one has sought to challenge either its contents or its conclusions. It needs to be read in full. Here I set out only the most immediately important passages. Referring to her interview with father on 27 March 2003 Dr Dare reports:

“When asked directly about his intentions to harm his family, he repeatedly stated, “I have no intention of killing them, I just said it; I am a peaceful person ... didn’t know what to do, I try anything”. [Father] became quite tearful when pressed on this subject and stated, “I will not kill my family, I want help. I lost everything in my life to save my family. I want to stay safe with my family.” [Father] did not disclose any homicidal intention or planning, with respect to the lives of his wife and children. He did express feelings of hopelessness about his current situation and of an overwhelming desire for help to remain in the United Kingdom. It would appear that [father] has no intention of harming his family and made the statement as a crisis response, to being informed that he was to be deported.”

She continues:

“[Father’s] ability to make informed decisions, whilst under a deportation order, appears to be impaired. It is apparent that [father] is unable to consider any other coping strategies at this time. He is single-minded in his determination to protect his family by remaining in the United Kingdom and has no other plans of how he may cope, should his plans not be realised. It is my opinion that [father] is able to fully consider and plan the future well-being of his family, should he remain living in the United Kingdom. However, his overwhelming feelings of hopelessness and helplessness, following a return to [Country X], currently prevent [father] from making clear informed decisions about his family’s future well-being in [Country X].”

Her conclusions and opinions include the following:

“[Father] is experiencing some symptomatology consistent with that of being exposed to a traumatic event. However, at the time of the assessment he did not meet the criteria for post-Traumatic Stress Disorder (SDSM-IV). Furthermore, [father] is. experiencing significant levels of anxiety and depressive symptomatology. It was not possible to interpret his personality profile due to the invalid response style. [Father] clearly endorsed a number of items on the Personality Assessment Inventory, relating to anxiety, depression, somatic symptoms, and high levels of stress. The endorsement of these items suggested that [father] wished to convey an impression that he was experiencing extreme difficulty in these areas.

With respect to the impact that [father’s] experiences in [Country X] may have had on his current psychological functioning and emotional well-being, it is not possible to identify whether his present symptomatology is related to [father’s] current life events, previous life events, or indeed may be a combination of past and current events. However, given [father’s] current asylum status, in addition to the separation from his family, any pre-existing traumatic symptomatology is likely to be maintained, and possibly exacerbated, by his perceived on-going trauma of being returned to [Country X].

[Father] repeatedly stated throughout the interview, that he had no intention of harming himself or his family. He appears to have made this allegation, as a crisis response to a situation in which he felt powerless and hopeless. He stated that he made the comment, as he “didn’t know what to do”, having been told that he and his family were due to be deported. He denied any homicidal intention and did not report any homicidal or suicidal plans. [Father] is driven by his belief that he can provide his family with a safe and secure future, if they remain in the United Kingdom. He appears overwhelmed by anxiety at the thoughts of returning to [Country X] and is unable to contemplate how he and his family would have a future there.

Predicting future risk is difficult, due to the need to consider all factors carefully and the unpredictability of human functioning. However, [father] has no reported history of violence and/or aggression and or other anti-social behaviour and no history of previous suicide attempts. [Father] only previously expressed suicidality as a verbal response to a crisis situation ie his pending deportation. In light of these factors, it would then appear that [father] would be considered to be of a low risk of harming his family.”

Dr Dare “strongly” recommended that father’s mental health be closely monitored and that he undergo a psychiatric assessment in particular to review his medication.

The major part of father’s statement is given over to a detailed account of his life in Country X and, in more elaborate form, of the events in Country X that led to his family coming to the United Kingdom. I need not go into this in any detail. The fact is that if this material goes to any claim that it is still open to the father to put forward (and I express no views at all as to whether or not this is so) it goes to his claim to asylum, or the related claim for exceptional leave to remain, and not to anything that this court has to determine. I accordingly say no more about it. He asserts that the statements he made in the course of the asylum proceedings did not give a full picture of events and (with what justification I know not) that he was advised by his immigration solicitors that the statements should be kept brief. It might be thought that in such circumstances the material would, however belatedly, have been submitted to the Home Office. But when I asked Mr McFarlane whether the additional material now being put forward by the father had yet been submitted to the Home Office by way of further representations I was told that it had not. (Following the hearing, further representations were made to the Home Office on 12 May 2003 on behalf of the mother and children, albeit relying in particular on the father’s witness statement and Dr Dare’s report.)

For present purposes the important part of father’s statement is the final paragraph:

“I believe that if my family return to [Country X] then I will be accused of espionage and treason. I will be detained for an indefinite period without trial. I believe that my life is in grave danger. My wife and children may also be detained. If my wife and children are released then they will have nowhere to go. If my family are not with me then I will not know what may happen to them and I will not be in a position to be able to protect them. Their lives may be placed at risk. My wife is not in a position to find employment and in any event it is unusual for women to be employed. The family previously relied on my sole income. The extended family are not in a position to help as they are very poor and their accommodation is small. In any event, my wife and my mother are estranged from each other. There will no assistance available from the Government for my wife and children and they may be forced into a life on the streets, having to beg for a living.”

The mother’s two statements are quite short. She describes the primitive conditions in parts of Country X, saying, for example, that her brother lives in a village where there is neither water nor electricity. She says that neither her family nor the father’s family will be in any position to provide either housing or other support. Her case is summarised in the following words:

“I am extremely terrified at the prospect of being returned to [Country X] with the children on the basis that I am certain that the [father] would be arrested at the airport and I would then be left with two children and no means of support. There are no support services in [Country X] and I would have no extended family to assist. I can only foresee a life of poverty for myself and my children and I would not consider it an exaggeration to think we may have to resort to begging to live. I have no particular skills and it is not an accepted culture that women with children are employed in [Country X] and if the [father] were imprisoned, then the children and I would have no support and they would suffer.”

I turn now to the various contentions of the parties. I start with mother. It is submitted on her behalf that there is evidence to suggest that the welfare of the children will not be safeguarded if they are returned to Country X, given:

It was repeatedly said by Ms Cover, both in her position statement and in the course of her oral submissions, that the care proceedings must remain in place, and the children remain subject to interim care orders, until such time as the local authority and the court are satisfied that the children are not likely to suffer significant harm in the care of their parents either in this country or in Country X. She submitted, referring for this purpose to London Borough of Southwark v B [1993] 2 FLR 559, that there continued to be a real and solid advantage to the children in what she and Ms Phillimore described as the continuation of these inquiries and proceedings.

They further submitted that it was in the children’s best interests that Cafcass Legal be discharged and that a children’s guardian be appointed under section 41(1) of the 1989 Act to report on the present circumstances of the children (being cared for by the mother under supervision) and on the impact of a return to Country X upon the children given the effects such a return may have on the ability of their parents to care for them. They submitted that the court cannot be satisfied that the children’s interests are safeguarded within the proceedings unless such a guardian is appointed to protect their interests. Likewise it was, they submitted, in the children’s best interests for the mother to be given permission to instruct a consultant adult psychiatrist to report upon the mother’s mental health and parenting ability and the effect upon her of a return to Country X. When I enquired what steps had been taken to identify a suitable expert and how long his or her report might take to prepare, the answer I received was somewhat vague. Following the hearing the mother’s solicitors wrote on 8 May 2003 to indicate that a consultant who they identified would be able to file a report within eight weeks of receipt of the letter of instruction.

In a passage in their position statement which, unsurprisingly, drew criticism from Ms Richards and which they sought to disavow in front of me, Ms Cover and Ms Phillimore submitted that:

“the children should remain subject to interim care orders unless and until the local authority and the court are satisfied that the children’s welfare on return to [Country X] has been properly considered by the Secretary of State. The children’s Article 3 rights- have not been considered, nor. has the Secretary of State carried out the necessary balancing exercise between the children’s Article 8 rights and the legitimate aim of immigration control: see R v Secretary of State for Home Department ex p Gangadeen [1998] 1 FLR 762. It is submitted that no decision to remove the children can be taken without the Secretary of State giving proper consideration to these two issues.”

In similar vein it was submitted that the inquiries of an independent guardian would be “invaluable” in informing the Secretary of State about the welfare of the children.

Father’s position was simple: it is as set out in his witness statement. If the family is returned to Country X he will be detained indefinitely and his life will be in real danger His wife and children will either be detained or destitute. He supports his wife’s position as set out in Ms Cover s position statement Despite Dr Dare’s recommendation Mr McFarlane and Ms Probyn expressly disavowed before me any intention of seeking any further psychiatric assessment of their client

The Secretary of State’s position is shortly stated Ms Richards correctly submits on his behalf that, at the outset of the proceedings, the sole evidence to suggest that there was any risk to the children from either parent was the father’s threat on 16 January 2003 to kill himself and his family. She further submits that the evidence now available does not support a finding that the children are likely to suffer significant harm at the hands of either parent and that it does not justify either the imposition of a care order or the continuation of an interim care order. On those grounds alone, says the Secretary of State, these proceedings should now come to an end. The circumstances are simply not such as to require any order under the 1989 Act.

Quite apart from that, says Ms Richards, the original action of the father and the subsequent actions of both parents are simply an attempt to frustrate the removal process. She submits that it is apparent both from the parents’ witness statements and “most blatantly” from the mother’s position statement that the parents are now seeking to use these proceedings — impermissibly — as a means of challenging and/or influencing the Secretary of State’s decision. Referring to R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 she submits that it is for the Secretary of State alone (subject to appeal to an Adjudicator or the Immigration Appeal Tribunal and/or an application to the Administrative Court for judicial review) to decide whether or not to remove the family to Country X. As she correctly observes, the father’s claims for asylum and for exceptional leave to remain have been rejected. He has exhausted his rights of appeal. He has never sought to mount any challenge by way of an application to the Administrative Court for judicial review of any part of the asylum process. She emphasises that before taking any removal action the Secretary of State will, of course, have regard to any order made by this court under the 1989 Act and to any findings of this court. Indeed, she indicates that where the court has made findings as to the risks posed to a child by a parent the Secretary of State is likely to attach significant weight to the court’s assessment. But she submits that even the making of a care order would not prevent the Secretary of State from deciding to remove either the parents or the children. Nor, she submits, does the existence of ongoing proceedings under the 1989 Act of itself prevent the Secretary of State from exercising his powers of removal: in other words, the Secretary of State is not, she says, under any obligation to await the outcome of this court’s deliberations. That said, she tells me that the Secretary of State’s usual practice is to refrain from taking any enforcement action against the relevant parties pending the outcome of the family proceedings.

The local authority asserts that in the light of the apparent threat from father on 16 January 2003 it had good reasons for fearing that the children might suffer serious harm or even death from parental actions if it did not hold public law orders so as to control the situation. Therefore, says Mr McCarthy QC on its behalf, it was appropriate for the local authority to commence and maintain the proceedings pending appropriate assessments, including in particular an expert assessment of father. He submits that the various assessments that have taken place since father made his threat on 16 January 2003 allay any previous concerns there may have been about whether either parent might harm the children. He points to three matters:

Mr McCarthy submits that the focus of the local authority’s application was the father’s threat and not the overall situation in Country X. The local authority’s understanding, both in January 2003 and now, is that any assessment of Country X is outside the scope of both its statutory and its practical competence. Mr McCarthy submits that unless any anticipated harm is attributable to the care likely to be given to the children then care proceedings are inappropriate. Furthermore, he says, the section 3 1(2) threshold exercise is not designed to allow a review of which country is preferable as a residence for the family as a whole.

Mr McCarthy says that, since the local authority does not believe that it is within its remit to comment on the appropriateness of the immigration decisions or on whether Country X is the place where reasonable parents would want to live, it confines itself to stating the obvious: that it is clear from all the evidence that the overwhelming aim of the parents is to avoid a return to Country X by any possible means. He does not differ from Ms Richards’s analysis of the law and accepts that it is no part of the local authority’s functions to review decisions arrived at by the Secretary of State in the immigration context. But for his part Mr McCarthy emphasises that this court cannot shirk its duty under the 1989 Act, and in particular cannot shirk the obligation to evaluate the risk elements encompassed in the section 31(2) threshold evaluation or the section 1(1) and (3) welfare principle and welfare checklist, merely because the Secretary of State is not bound by the view this court may come to in the care proceedings. He submits that there is nothing in Part IV of the 1989 Act which permits the court to refuse to act to protect a child from threatened harm for reasons related to the enforcement of immigration law and policy. If the evidence shows that there is a risk sufficient to meet the test in section 3 8(2), then the court should not be deterred from exercising its powers merely because of the Secretary of State’s involvement. If, on the other hand, the evidence shows that there is no such risk, then the court has to consider very carefully whether it should allow the proceedings to continue, particularly if there is reason to suspect that the proceedings are being used by the parents as a tool in the immigration process.

The local authority has not formally sought leave to withdraw its application in accordance with FPR rule 4.5, but it has said nothing whatever to suggest that it thinks the continuance of the proceedings will serve any useful purpose or further the interests of the children. On the contrary, Mr McCarthy indicated that the local authority felt the care proceedings should now be stopped, unless the court were to take the view that some further assessment was called for.

Mr Barda on behalf of Cafcass Legal and the children’s guardian did not suggest there was any real need for the proceedings to continue.

The law is not in doubt, though its application may often not be that simple

The starting point is the fundamental principle that I have recently had occasion to consider in A v A Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras [47]-[56], and again in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484, paras [143]-[148]. For present purposes two short extracts from classic authorities will suffice. In In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 at p 797C Lord Scarman said:

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seised by the same matter, would act judicially. If Parliament in an area of concern defined by statute ... prefers power to be exercised administratively instead of judicially, so be it.”

In In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at p

In the present context the seminal decision was that of the Court of Appeal in In re Mohamed Arif [1968]Ch 643 where at p 662D Russell LJ said:

“It is, however, quite obvious that there are circumstances in which control over the person of a ward is not committed or referred to the judge but is by the law of England committed or referred to another agency or person. As a simple illustration, it could not be contended that the judge would have any jurisdiction to order that a criminal ward be transferred from place of detention A to place of detention B, however much the medical evidence before the judge suggested that the ward would be in better health at place of detention B. The reason is that the jurisdiction of the judge over the person of the ward is necessarily restricted by the fact that the law has given that aspect of control over the ward’s person exclusively to another agency. Similarly the judge would have no right to complain of or countermand a lawful posting overseas of a ward who was in the armed forces. The law refers the military control of the ward to the military authorities. Similarly, any lawful deportation order affecting a ward must be outside the normal position which I have mentioned already, that a ward must not leave the jurisdiction without permission of the judge, indeed, it would override any existing express order of the judge in the wardship proceedings that the infant was not to depart from the jurisdiction ... The wardship of infants, in my judgment, has not and could not in law have any effect on the powers and duties of the immigration authorities so as to hamper them in any way in removing the infants from the jurisdiction under the Act of 1962.”

The leading authority in this branch of the law is now R v Secretary of State for the Home Department ex p T [1995] 1FLR 293. It will be simplest if I set out in full the key passages in Hoffmann LJ’s judgment. At p 296D he said this:

“In the last 25 years there have been a number of cases in which the courts jurisdiction in respect of children has been invoked in an attempt to inhibit or influence the exercise by immigration officers or the Secretary of State of the powers conferred by the Immigration Act 1971 or its predecessors. We were referred to Re Mohamed Arif (An Infant) [1968] Ch 643, Re F (A Minor) (Immigration: Wardship) [1990] Fam 125, [1989] 1 FLR 233, Re A (A Minor) (Wardship: Immigration,). [1992] 1 FLR 427, Re K and S (Minors,) (Wardship: Immigration) [1992] 1 FLR 432 and Findlay v Matondo [1993] 1 AC 541. From these and other cases I think that the following propositions can be extracted.

(1)

The court may entertain an application to invoke its wardship jurisdiction or powers under the Children Act 1989 made by or in respect of a person liable to removal or deportation

(2)

The jurisdiction will be exercised very sparingly because

(a)

a wardship or Children Act order cannot deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings, although it may be something to which the Secretary of State should have regard in deciding whether to exercise the power; and

(b)

in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State.

Proposition (1) follows from the general principle that every person within the jurisdiction is entitled to the equal protection of the law: see Lord Scarman in R v Home Secretary ex parte Khawaja [1984] 1 AC 74 at p 111, applied by Bracewell J in Findlay v Matondo (above) at p 545.Proposition (2) is stated in all the cases but the two reasons require further analysis. Reason (a) is contained in the judgment of Russell LJ in Re Mohamed Arif (above) at p 662.”

Having then referred to certain passages in Russell LJ’s judgment in Mohamed Arif Hoffmann LJ continued at p 297E:

“These passages have since been cited by Butler-Sloss LJ in Re F (A Minor) (Immigration: Wardship) (above) and by Hollis J in Re K and S (Minors) (Immigration) (above). The reasoning seems to me, if I may respectfully say so, unassailable. The judge hearing an application in wardship or under the Children Act is not entitled to have regard to immigration policy. Even if the Secretary of State has been joined as a party to the application, the judge must be guided solely by the interests of the child. It would therefore make no sense for his decision to prevent the Secretary of State from exercising a power based on altogether different considerations.

Miss Szwed and Mr Scannell submitted that these propositions of law had been qualified by statements in later cases to the effect that the wardship jurisdiction should not be invoked ‘to clog or fetter the discretion given by Parliament to immigration officials and the Secretary of State’: see Parker LJ in Re A (A Minor) (Wardship: Immigration) (above) and Butler-Sloss LJ in Re F (A Minor) (Immigration: Wardship) (above). They said that such remarks necessarily implied that if a wardship order were made, it would clog or fetter the discretion of the Secretary of State. It must therefore follow that if, in exceptional circumstances, ‘such an order’ was made, it would prevent the Secretary of State from exercising his immigration powers.

Finally at p 298F, speaking of the Secretary of State’s practice on intervention in cases concerning children, he said:

“It therefore appears to be normal policy in such cases to intervene. Such a policy is understandable, having regard to, first, the potential relevance of the court’s views as a matter to be taken into account by the Secretary of State; secondly, the desirability of comity between executive and judiciary; and thirdly, the desire of the Secretary of State to fulfil this country’s obligations under Art 8 of the European Convention. But there is no legal necessity for the Secretary of State to intervene and have the application dismissed before he is able to exercise his immigration powers. There may well be cases in which intervention would serve no purpose. The court and the Secretary of State are performing different functions. It does not follow that because the court, applying its criteria of the welfare of the child, refuses to dismiss the application, the Secretary of State should not exercise his powers of deportation or removal. He may therefore take the view that whatever the court may decide about the welfare of the child, policy requires removal or deportation. Provided that such a decision is not irrational or procedurally irregular, the court cannot declare it unlawful.”

As the authorities show, and the point perhaps requires emphasis, exactly the same fundamental principles apply whether the court is exercising its private law powers under Part II of the 1989 Act, its public law powers under Part IV of the 1989 Act, the wardship jurisdiction, or its inherent jurisdiction in relation to children recognised and to an extent regulated by section 100 of the 1989 Act. Proceedings under the Adoption Act 1976 apart, whatever jurisdiction he may be exercising a judge of the Family Division can no more than a judge of the County Court or a Family Proceedings Court make an order which has the effect of depriving the Secretary of State of his power to remove a child or any other party to the proceedings.

In ex p T the court was considering the problem primarily from the perspective of private law proceedings in the Family Division under Part II of the 1989 Act. In R v Secretary of State for Home Department ex p Gangadeen [1998] 1 FLR 762 the Court of Appeal .had to consider the problem from the perspective of immigration proceedings in what is now the Administrative Court. The question was as to the weight to be placed on the interests of an illegal entrant’s child: in particular, as to whether the Secretary of State was required to treat the child’s interests as paramount.

Although the case was decided before the Human Rights Act 1998 the issue was considered in the context of the European Convention and the Strasbourg jurisprudence, in particular the decisions in Abdulaziz v United Kingdom (1985) 7 EHRR 471, Berrehab v Netherlands (1988) 11 EHRR 322, Sorabjee v United Kingdom [1996] EHRLR 216 and Poku v United Kingdom (1996) 22 EBIRR CD 94. Hirst LJ at p 773H said:

“In my judgment these ... cases demonstrate quite clearly that, in their interpretation of Art 8 in the present context, the Human Rights Court and the Commission approach the problem as a straightforward balancing exercise, in which the scales start even, and where the weight to be given to the considerations on each side of the balance is to be assessed according to the individual circumstances of the case; thus they do not support the notion that paramountcy is to be given to the interests of the child.”

Swinton Thomas LJ at p 784C said:

“The importance of the English domestic decisions in the context of Art 8 and the European decisions in immigration cases where children are concerned is that there may be a tendency to focus solely, or largely, on the adult who is to be deported or a risk that that may happen. The adult is likely to be in breach of immigration law. The child will continue to be looked after by the parent with whom the child resides, usually, as I have said, the mother. Accordingly there is a risk that the child will be viewed only as an appendage of the parent.

In the field of immigration, particularly decisions relating to deportation, the interests of the child are not, and cannot, be paramount or primary. That this is so is accepted by the European cases, for example Sorabjee v UK and Abdulaziz v UK. If it were otherwise, it would be difficult ever to make a deportation decision in relation to a child. However, the interests of the child are of great importance, and must be given separate consideration, including consideration of the child’s family ties in this country, and, in the case of an adult in respect of whom a deportation decision is taken, the adult’s ties with the child must be taken into account in the balancing exercise.”

The only other authority I need refer to is London Borough of Southwark v B [1993] 2 FLR 559. This shows that the welfare principle in section 1(1) of the 1989 Act applies to the court’s exercise of discretion when considering under FPR rule 4.5 whether or not to give a local authority leave to withdraw its application for a care order. The correct approach was indicated by Waite LJ at p 573D:

“The paramount consideration for any court dealing with a r 4.5 application is accordingly the question whether the withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned. It is not to be assumed, when determining that question, that every child who is made the subject of care proceedings derives an automatic advantage from having them continued. There is no advantage to any child in being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result. It is a matter of looking at each case to see whether there is some solid advantage to the - child to be derived from continuing the proceedings.”

So much for the authorities. The law, as Ihave said, is clear and I do not propose to add to the jurisprudence on this topic. I simply make the following points by way of emphasis:

These are care proceedings: they are not immigration proceedings. My task — and my only task — is that imposed on me by Part IV of the 1989 Act. I am not sitting in the Administrative Court, nor am I reviewing any decision the Secretary of State has made. My task, consistently with Southwark v B, is to assess whether the continuation of these proceedings will promote the welfare of the children, whether there is some “solid advantage” to the children in continuing the proceedings. More particularly, my task is to determine in accordance with section 3 8(2) of the 1989 Act whether I am “satisfied that there are reasonable grounds for believing that circumstances with respect to the child[ren] are as mentioned in section 31(2)”. That section provides that:

“A court may only make a care order or supervision order if it is satisfied —

(a)

that the child concerned is suffering, or is likely to suffer significant harm and

(b)

that the harm, or likelihood of harm is attributable to —

(i)

the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him, or

(ii)

the child’s being beyond parental control.”

Specifically and in accordance with the order made by Singer J on 5 March 2003, I have to determine ‘whether the children will be at risk of significant harm in the present circumstances and if so ... the extent of that risk”. In addressing all these questions I have, of course to apply the provisions of sections 31(9) and (10) of the 1989 Act.

Ultimately, if the proceedings are allowed to continue, the task for the court will be to determine whether the ‘threshold’ is established in accordance with the test laid down in section 31(2) and, if it is, whether to make a care order, a supervision order, some form of private law order under Part II of the 1989 Act, or no order at all.

I turn to the question of risk, the question of whether the children are likely to suffer significant harm.

I propose to deal first with the question of the risk, if any, to the children if they remain in this country In my judgment there is simply no evidence to support the contention that there is, in the sense in which the words were used in In re H (Minors) (Sexual Abuse Standard of Proof) [1996] AC 563at pp 576B and 58SF, any real or substantial risk of harm to these children so long as they remain in this country. There is no answer to the submissions on this point made by Mr McCarthy and Ms Richards. It is suggested, on the basis of what father said to SW on 16 January 2003 about the mother being depressed and suicidal and, more particularly, on the basis of her overdose later the same day, that mother poses a risk to the children. The arguments verge on the fanciful, I have already referred to the medical assessment of mother’s mental condition on 17 January 2003 and to the outcome of the local authority’s assessment of the parents. There is simply nothing’ to show that mother poses any risk — and I note that this is not something even hinted at in her own witness statements. Ms Cover and Mr McFarlane seek to find in Dr Dare’s report support for the assertion that the children are at continuing risk from father. There may be a risk, but on a fair reading of the whole of Dr Dare’s report, even when taken in conjunction with the threats uttered by father to SW on 16 January 2003, that risk is no more than theoretical. It is neither real nor substantial. It is certainly not enough, of itself, to justify the continuation of care proceedings. I agree with the considered view of the local authority, arrived at in the light of all the evidence, Dr Dare’s report and its own assessment, that there are no continuing causes for concern, nothing which satisfies even the ‘reasonable grounds for believing” test under section 38(2),let alone the “is satisfied” test under section 31(2), and no remaining utility in the proceedings.

Ms Cover, as I have mentioned, submitted that further inquiries should be undertaken, that there should be a psychiatric assessment of mother and more general and wide-ranging inquiries by a children’s guardian. I do not agree. There is nothing whatever in the materials before the court to suggest that any such ‘investigations would tell us anything we do not already know, let alone lead to any significant alteration in the overall shape of the case.’ Ms Cover’s submission, with all respect to her, is little more than Micawberism — based on the mere hope, but in circumstances where there is, in my judgment, no real basis for any belief that if only matters were to be investigated further something might turn up.

I turn to deal with the question of the risk, if any, to the children if they return to Country X. There are two aspects to this. The first, correctly disavowed by Ms Cover and Mr McFarlane although, as we have seen, it forms the central core of both parents’ witness statements, relates to the physical, social, economic and cultural conditions in Country X and the very deprived standard of living they and the children may expect to have to endure there. I agree with Mr McCarthy when he submits that it is no part of the court’s function in a case such as this to carry out a comparative analysis of conditions in this country and in Country X with a view to deciding which country might be thought preferable as a place for the children to be living. Such an exercise is, in my judgment outside the proper scope of the present proceedings. The matter can perhaps be tested in this way. Suppose that the parents actually wanted to return to Country X — the country of their birth and domicile. Could it seriously be suggested that it would be a proper use of Part IV of the 1989 Act for the local authority to start care proceedings in order to prevent the family returning to its own country merely because in the local authority’s view the children would be better off being brought up in this country rather than in their own country? Surely not. That is not within the legitimate purposes of the legislation. It would constitute a wholly unacceptable interference with the family’s rights under article 8 of the European Convention. It would be social. engineering on a grand and unacceptable scale. More prosaicaily, any such attempt would surely founder on the language of section 31(2)(b)(i) of the 1989 Act. Let it be assumed for the sake of argument that conditions in Country X are such as to expose the children to the risk of significant harm, how can it be said that such harm would be attributable to the care being given to the children “not being what it would be reasonable to expect a parent to give him”? Save perhaps in exceptional circumstances it cannot, in my judgment, be an appropriate or even a proper use of care proceedings for a local authority or the court to seek to prevent a family which comes from some foreign country returning there if that is what it wants.

The other aspect, on which Ms Cover and Mr McFarlane focus, is the possible risk to the children from their parents if the family has to return to Country X. It is said that father may be arrested and thus be prevented from caring for the children. That may be, but it cannot of itself justify the continuation of the proceedings. It is said that both parents’ mental state is such that they will not be able to cope, will not be able to parent effectively, if forced to live in Country X. It is said that mother’s feelings of hopelessness, helplessness, fear and even terror are’ such, and that the conditions in which she will find herself are so intolerable, that she will simply not be able to cope if left to fend on her own, without the support of either father or the wider family. It is said that father is so paranoid about what may happen to him in Country X, and that his personality is such, that even if he is not immediately arrested he will not be able to cope. Put shortly, the parents’ case is that even if they can parent more than adequately in this country they will not be able to parent adequately in Country X.

Let it be assumed — as I do though without making any findings to this effect — that conditions in Country X are indeed as the parents describe them and that the family will in fact find itself in the situation they fear. Nonetheless in my judgment there is simply no sound evidential basis for the assertion that the parents will not be able to cope, or for the assertion that they will not be able to parent effectively. The parents are in the local authority’s considered view (and I have seen nothing to suggest the contrary) good and caring parents, devoted to their children. The local authority is impressed by their commitment. There is nothing to suggest that this commitment will be any the less fierce if the family is living in Country X. Making every allowance for everything said by the parents in their witness statements and by Dr Dare in her report, and recognising the significance of each parent’s words and actions on 16 January 2003, there is nonetheless in my judgment no real or substantial basis for fearing that either parent will be, so adversely affected either by being returned to Country X or by conditions in Country X as not to be able to parent their children adequately.

For all these reasons I am wholly unpersuaded that there are any reasonable grounds for believing either

It follows, in my judgment, that there is no present evidential basis for a continuation of the interim care orders and no present evidential basis for any continuation of the proceedings. Nor, for reasons I have already explained, is there any basis for believing that further inquiries of any kind would tell us anything we do not already know or lead to any significant alteration in the overall shape of the case. The proceedings have no utility, are no longer serving any useful or even legitimate purpose and are conferring no benefit on the children. There is no legitimate advantage to the children in continuing the proceedings Other things being equal the time has now come to bring these proceedings to an end, which I plainly have power to do whether or not the local authority has made any application under FPR rule 4.5. The plain fact is that it is only the parents who are actively seeking a continuation of the proceedings, and that only because of the immigration aspect of the case.

In short, I accept in substance the various submissions put before me by Mr McCarthy and Ms Richards.

Thus far I have considered the case, as I am required to, entirely from the point of view of Part IV of the 1989Act. I am not entitled to have regard to immigration policy. This court does not act as a policeman for the Secretary of State, nor is it any part of my functions to assist the Secretary of State in the enforcement of whatever powers he may have under the 1971 Act and its associated legislation. But I cannot blind myself to the underlying realities. Nor should I blind myself to the context in which these proceedings were commenced and in which I am now being encouraged by the parents to allow them to continue.

It is perfectly obvious that the parents’ only purpose in seeking to persuade the court to continue these proceedings is simply to frustrate the removal process and to prevent for as long as possible, and if possibly indefinitely, the family’s return to Country X. They are not necessarily to be criticised for this, for desperate people will understandably resort to desperate remedies. But that is the stark reality. The fact is, as Ms Richards asserts, that the parents are seeking to use these proceedings impermissibly as a means of challenging or influencing the Secretary of State’s decision. There is no longer in my judgment any genuine dispute concerning these children requiring to be resolved in proceedings under Part IV of the 1989 Act. In these circumstances the parents are in truth seeking to use the court as a means of influencing or attempting to influence the Secretary of State and that, as Hoffmann LJ made clear, is an abuse of process. Let me make it clear. I do not in any way criticise the local authority for having commenced the proceedings. Given the events of 16 January 2003 it had little choice. Nor, in human terms, do I criticise the parents. But however understandable their reasons for wanting the proceedings to continue there is no legitimate reason why they should.

The extreme artificiality of the situation as matters now stand is apparent from a number of factors:

For all these reasons I propose with immediate effect to discharge the interim care orders and to make an order dismissing the proceedings,

I can understand why in this particular case it was thought appropriate by the Circuit Judge to transfer the matter up to the High Court. And I do not criticise the Treasury Solicitor for asking for the case to be listed before a judge of the Division who is also a nominated judge of the Administrative Court. But I should not like it to be thought that there is any need for a care case to be transferred to the High Court, let alone listed in front of one of the Division’s judges who also sits in the Administrative Court, merely because the parents or the children are subject to immigration proceedings or liable to removal. The relevant principles appear clearly enough from ex pT and, other things being equal, are as capable of application by the circuit judge or the Family Proceedings Court as by the High Court.

The final matter is this. Although, of course, the Secretary of State is not obliged to stay his hand merely because care proceedings are on foot, the practical reality is that an illegal entrant s removal from the United Kingdom is likely to be delayed by pending care proceedings because, as Ms Richards confirmed, the usual practice of the Secretary of State is to refrain from taking enforcement action pending the outcome of such proceedings. I do not want to be thought to be saying anything to encourage the Secretary of State to take any different course. But this humane policy comes at a price and the comity between executive and judiciary which Hoffmann LJ referred to in ex p T requires sensitivity on the part of the court. The jurisdiction, as Hoffmann LJ indicated, is to be exercised sparingly. The court must be alert to the possibility in cases such as this that the local authority and the court are being used by desperate parents for ulterior purposes. Just as every asylum case demands anxious scrutiny, so does every care case. But the court must be alert that it does not allow itself to become complicit in the abuse of its own process by failed asylum seekers who may see in the processes of family law a solution to their problems not available to them within the immigration system or in the Administrative Court.