Akhtar v Ayoub

This application concerns four children. Their ages range from 17, 15 and 14 to a fourth child, Haseem, who was born on 1 August 2006 and is now aged seven and a quarter. For some time now the three eldest of those children have been living with their father in Blackburn, Lancashire. The youngest, Haseem, has until very recently been living with his mother in Pakistan.

The mother claims to have been deliberately stranded in Pakistan by the father by various tricks and devices. That had the effect that the youngest child was separated from the three eldest children, and the mother herself was separated from her three eldest children. She is not a British citizen and has no automatic right to enter, or remain in, the United Kingdom.

The mother commenced proceedings in the Blackburn County Court and later proceedings here in the High Court in London. The High Court has made a series of orders between 29 April 2013 and most recently 23 September 2013. All those orders contain on their face strong requests to the Secretary of State for the Home Department and her official, the Entry Clearance Officer in Islamabad, to give urgent and sympathetic consideration to allowing the mother to travel here to the United Kingdom and enter England, at any rate for a limited period for the purpose of these proceedings.

Prior to August, the most recent such order was that of Mrs. Justice Theis dated 22 May 2013. That contains a preamble which records, amongst other matters:

“It appears to be in the interests of [the three elder children] for the mother and Haseem to travel to England and Wales at the earliest possible opportunity so that the mother may have meaningful contact with [the three eldest children] and the children with each other …”

Further on the order recites:

“… the court expressing the view and being of the opinion that the mother’s attendance in the jurisdiction of England and Wales is both required and necessary to determine this matter, and therefore respectfully requesting … the administrative authorities of England and Wales … to offer any and all assistance as they may to facilitate the mother’s and Haseem’s travel to and entry into England and Wales …”.

Yet further the order recites:

“and the court respectfully requests the British High Commission, the Entry Clearance Officer, Islamabad … to give urgent consideration to allowing the mother and Haseem to enter the United Kingdom …”.

All those orders were patently known to the Secretary of State and her officials, and in particular the Entry Clearance Officer in Islamabad, when, on 7 August 2013, that officer refused entry clearance for the mother to enter the United Kingdom.

It is not for me in these wardship proceedings to express any view whatsoever, nor do I so, as to whether that decision by the Entry Clearance Officer or any other decisions of the Secretary of State by her officials are lawful or unlawful, justifiable or unjustifiable, right or wrong. It is very firmly established indeed, and is in fact an important constitutional principle, that the High Court in the exercise of its inherent and wardship jurisdictions in relation to children does not trespass into, or interfere with, the decision making powers and duties of the Secretary of State for the Home Department in relation to immigration matters. Immigration control is entrusted to the Secretary of State for the Home Department and is the subject, of course, of very detailed regulation by complex statutes and immigration rules.

This court may, as it now has done several times by the earlier orders that I have mentioned in this case, express requests and opinions to the Secretary of State. No doubt the Secretary of State must give appropriate regard to those requests and opinions, for if she simply ignored them she would not be taking into account all relevant matters. But it is extremely important that this court does not go, or appear to go, further and trespass into the powers, duties and discretions of the Secretary of State in immigration matters. So the position that now obtains is that, notwithstanding those earlier orders of this court and the opinions and requests contained in them, the Secretary of State appears currently to have reached a firm decision not to permit the mother to enter the United Kingdom. The reasons for that decision are given clearly in the Notice of Immigration Decision made by the Entry Clearance Officer dated 7 August 2013.

The mother may or may not have avenues to challenge that decision. That is nothing whatsoever to do with me or the Family Division of the High Court. The fact of the matter as it currently stands is that the mother cannot enter the United Kingdom. She does not seek, or even suggest, that any of her children should move to live with her in Pakistan. Further, as recently as September of this year she did in fact send the youngest child, Haseem, aged seven, back to England to reside here in Blackburn with his father and siblings. It is said that she did so under extreme pressure in that if he did not return here within two years he might himself later be refused any permission to enter. Whatever her reasons for that decision, the fact is that it was she who did send Haseem back to England.

So the position now is that all four children are living with their father in Blackburn, Lancashire. The mother is living in Pakistan. The mother is not currently able to enter the United Kingdom. On behalf of the mother I have been very strongly urged by Ms Mehvish Chaudhry, with her characteristic cogency and clarity, to maintain the current wardship in being and, indeed, to repeat and maintain the existing expressions of opinion and requests to the effect that the mother should be permitted to enter the United Kingdom.

Similar issues were raised before His Honour Judge Tyzack QC sitting here as a judge of the High Court on 23 October 2013. He gave a judgment of which I have read a note. He did decide to maintain for a short further period the pre-existing orders, and directed that the matter be listed here today before a full judge of the Family Division who is also a nominated judge of the administrative court, as I am.

At paragraph 10 of the note of his judgment Judge Tyzack said:

“In conclusion – on balance – and with hesitation, although I see the force in Mr Samuel’s submissions [on behalf of the father] I will allow the mother one final chance to argue her case in this court before a judge to determine the merits of an application under section 29 of the Senior Courts Act 1981 … “.

Reading the judgment of His Honour Judge Tyzack as a whole, it is clear to me that he himself had very considerable misgivings about maintaining these proceedings in being, but felt that a decision finally to terminate the wardship should be made by a more senior judge.

I have very considerable sympathy with the position of the mother, who is now separated from all her children. It cannot be a desirable situation for the children to be thus separated from their mother, whether or not on a daily basis they should be living with her or with their father. But I have to say that it seems to me that this wardship has now become futile and, indeed, potentially abusive of the proper boundaries between this court and the Secretary of State in immigration matters. Miss Chaudhry has strongly urged that there is a continuing need for a full fact finding hearing into a range of issues as to the manner in which the father treated the mother and as to whether he stranded her in Pakistan by devices, as the mother alleges. That seems to me to be both pointless and largely impractical. It is pointless, for the present reality is that the children are here (and the mother does not suggest they should live anywhere other than England) and the mother cannot be here. It is impractical, because in my experience attempts to have fact finding hearings by video link or similar connections to Pakistan almost invariably break down with technical failures, and break down and degenerate almost into farce. So I see no current point or purpose in a fact finding hearing and am not willing to give directions for one. I can see no continuing point or purpose in the children remaining wards of court. It seems to me that any further continuation or repetition of the many expressions of opinion and requests to the Secretary of State would now border, as I have said, on an abuse by this court.

So I do not bring the proceedings themselves to an end. Rather, I transfer them to the Blackburn District Registry where, until further order, they should be resolved by a circuit judge who is able to sit as a judge of the High Court under section 9. I require CAFCASS to allocate an officer to see all four children and investigate and report as to their well being, but with particular focus, for the reasons I have just given, on the youngest child, Haseem. I will direct that either party may restore these proceedings in the Blackburn District Registry after that report has been filed. I will provide that both parents may, if they wish, make narrative statements as to the history here so at least it is on the record, and I will direct that in any event the father must file and serve a discrete statement in which he makes detailed proposals as to direct and indirect contact between the children and their mother.

Since it may be germane to any further challenge that the mother may make in relation to immigration decisions, I propose to direct that a transcript of this judgment is made at the expense of public funds and made available to both parties. The mother has permission to use and disclose it in relation to any further application she may make or challenge she may bring as to her immigration status.