Re K and S (Monors) (Wardship: Immigration)
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | Family Division |
| Publication Date | 17 October 1991 |
| Citation / Document Symbol | [1992] 1 FLR 432, [1992] Fam Law 239, [1992] 1 FCR 385 |
| Cite as | Re K and S (Monors) (Wardship: Immigration), [1992] 1 FLR 432, [1992] Fam Law 239, [1992] 1 FCR 385, United Kingdom: High Court (England and Wales), 17 October 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b61f10.html [accessed 21 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
RE K AND S (MINORS) (WARDSHIP: IMMIGRATION)
Family Division
[1992] 1 FLR 432, [1992] Fam Law 239, [1992] 1 FCR 385
Hearing Date: 17 October 1991
17 October 1991
Index Terms:
Immigration -- Parents of seven children were illegal immigrants -- Children made wards of court following service of deportation orders on parents -- Eldest child having attained majority when deportation orders served -- Eldest child applying for care and control of brothers and sisters in wardship -- No deportation notice or order served on children -- District judge discharging wardship as being abuse of process of court -- Eldest child appealing -- Whether wardship should be continued for the welfare of the children
The plaintiff, now aged 20, was the elder sister of six children aged between 2 and 15 years. The parents of the children, both Sikhs, were admitted into the UK as temporary visitors, together with their then five children. Two further children were born to the mother in the UK. The whole family was granted an extension of stay. Following an interview, the father's application for political asylum was refused, with an extension of stay to take effect until a fixed date. The father's appeal against that decision was dismissed by the chief adjudicator. Upon their failure to leave the country, they were served with deporation notices. The mother's notice referred to the children as also being subject to the terms of the notice. On the dismissal of the family's various appeals against that decision, deportation orders were served on them. They were told to make their own arrangements for departure within the week, and to inform the immigration officer of their plans. By that time the plaintiff was 18 years old. Nothing further was heard from the family, who had moved, and it took the immigration office some time to trace them. The father was then imprisoned and subsequently deported, but attempts to remove the family failed when they disappeared from their home. The Home Office was then informed that newly appointed solicitors acting for the children had applied to make the children wards of court. The plaintiff applied for the care and control of her brothers and sisters. She had looked after them following the father's arrest and the mother's recent ill-health. The mother was shortly to be deported; she could not decide whether to take the minor children with her or to leave them with the plaintiff. No deportation notices or orders were served on the plaintiff or any of the other children. It appeared that the plaintiff was engaged to be married to a resident. The district judge discharged the wardship as being an abuse of the process of the court. The plaintiff appealed. Held -- allowing the appeal in part -- (1) The institution or continuation of the wardship to keep the child within the jurisdication and to frustrate the immigration legislation was a fetter upon the discretion given by Parliament to the immigration officials and to the Secretary of State, and was an abuse of the process of the court. Their decisions should not be interfered with, save in the most exceptional circumstances, when the use of wardship might be necessary for the welfare of the child. (2) On the present facts, the wardship should continue until such time as the Secretary of State had obtained a deportation order against the plaintiff and her time for appealing such an order had expired, so that the care of the children could be provided for. Re F (A Minor) (Immigration: Wardship) [1990] Fam 125, [1989] 1 FLR 233 followed. A (A Minor) (Wardship: Immigration), Re [1992] 1 FLR 427, CA F (A Minor) (Immigration: Wardship), Re [1990] Fam 125, [1989] 1 FLR 233, [1989] 3 WLR 691, [1989], All ER 1155, CA Mohamed Arif (An Infant), Re [1968] Ch 643, [1968] 2 WLR 1290, [1968] 2 All ER 145Introduction:
Appeal from the decision of the district judge sitting in Nottingham Allan Levy QC and Usha Sood for the plaintiff; Bernadette Simmons for the mother; John Elvidge and Katherine Davidson for the Home Office; The father did not appear and was not represented. PANEL: Hollis JHOLLIS JJudgment One:
HOLLIS J: This is an appeal by the plaintiff in wardship proceedings from the decision of a district judge, dated 23 August 1991, whereby he discharged the wardship as being an abuse of process of the court. It does not seem to me to have been a very satisfactory hearing before the district judge as it was listed for 15 minutes for directions. During the course of the hearing, the district judge not only gave leave for the Secretary of State for the Home Office to intervene in the proceedings, but also decided the matter there and then. On this appeal, I have admitted further affidavit evidence and have, I think, a rather fuller picture than that before the district judge. Six children were warded by the plaintiff on 8 July 1991, the plaintiff being their elder sister, who is now 20. The parents of the children, who are both Sikhs, came to England in the spring of 1984 from India as temporary visitors with their then five children. The mother of the children is now about 35. She is still in England, suffering from depression and an anxiety state. She is the first defendant in the wardship. The father is 46 and is now back in India living in penury and without a home. He is the second defendant in the proceedings. He has not been served with notice of this appeal but, with consent of all the other parties, I have retrospectively dispensed with service upon him. The children concerned are, first, the plaintiff, D, who was born on 12 September 1971, so she is now 20; V, born on 16 July 1976, so he is 15; D, born on 15 October 1979, 12; H, born on 15 December 1980, 10 3/4; B, born on 2 August 1983, 8; D, born on 8 January 1986, so she is aproximately 5 3/4; and G, born on 9 August 1989, who is 2. The first five children were born in India, the last two were born in England. The history of the matter is conveniently set out in the affidavit of Gillian Griffiths, her affidavit being sworn on 30 July 1991, and she is a Grade 7 officer in the Immigration Department of the Home Office. She says (para 4):'The first defendant, the mother, was admitted into the UK as a visitor for 3 months on 12 April 1984, together with her five children. On 3 May 1984 the second defendant, the father, was also admitted for one month on the same basis. He was subsequently granted an extension of stay as a visitor until 10 August 1984 and, on application the whole family were granted further leave to remain on this basis until 4 January 1985. Mr S made an application for political asylum based on the difficulties faced by Sikhs following the assassination of Mrs Gandhi.'Following an interview on 28 January 1985, Mr S was found not to have a well-founded fear of persecution in India and the application was refused on 13 March 1986, with an extension of stay under the Immigration Variation of Leave Order 1976 taking effect until 10 April 1986. The defendants appealed against this decision, which was dismissed by the chief adjudicator on 18 November 1986. The defendants did not embark by 10 April 1987 and, on 28 April 1987, they were put on notice of their liability to deporation and invited to submit factors that might mitigate such action. Further information promised by their representatives was not received and, on 21 January 1988, the defendants were served with notices of intention to deport. Mrs K's notice referred to the children as also being subject to the terms of the notice.
If one looks at that notice, which is exhibited or a copy of it exhibited, one sees that the only reference to the children is this. It starts off, 'To KKS plus cihldren'. Mr and Mrs S and the children appealed against the decision on 28 January 1988, stating that the grounds of appeal would follow. They were not in fact received until 22 July 1988. The appeals against the decision to deport were dismissed by the adjudicator on 19 June 1989. An application for leave to appeal to the tribunal was refused on 20 September 1989. Deportation orders were signed against Mr and Mrs S on 2 January 1990 and served on them at their home in Manchester on 20 January 1990. It will be noted that by that date the plaintiff was 18. Copies of the orders are produced. Because of their family circumstances, they were left at liberty to make their own arrangements for departure. Although no restrictions were placed on them, they were advised to make arrangements within the week and inform the immigration officer of their plans. Nothing further was heard from the family and, on 27 January 1990, the immigration officer called at the family address and found no one there. He received information that the family had moved to Nottingham and it was not until 24 January 1991 that the family were traced. Mr S was detained on that date at Leicester prison. Attempts to remove all the family on 24 June 1991 were postponed when new solicitors advised the Home Office that they were to make an application for leave to move for judicial review. No such application was made. Revised removal directions were then set for 8 July 1991. However, when the immigration service arrived to collect Mrs K and her seven children, it was found that were no longer at their home in Nottingham. Later the same day, the Home Office were informed that the solicitors acting for the children had applied to have the children made wards of court. The plaintiff applied for the care and control of her brothers and sisters. Mr S was removed on 8 July 1991 on a flight to Delhi. That history shows, to my mind, the parents' very strong and, indeed, devious efforts to stay in this country and throws suspicion on the motives behind the present wardship summons. Ever since the father's arrest in January 1991, or shortly thereafter, the plaintiff has looked after the other children at an address in Sneinton in Nottingham, the mother living elsewhere in Nottingham but seeing the children daily. The mother now says that she is incapable of caring for the children at present because of her health. She will be deported to India shortly. She is in two minds whether to take the minor children with her or to leave them with the plaintiff in England. She has nowhere to live in India and it follows, of course, nowhere for the children to live in India. No deportation notices or orders have been served on the plaintiff or any of the other children. Mr Elvidge, who appears for the Secretary of State or did appear at the hearing, because I reserved judgment, says that it is not the practice of the Home Office to serve children as they expect children to accompany their deported parents or other custodians. That seems to me to be a reasonable expectation in most cases, but in this case the plaintiff has attained her majority and was also over the age of 18 when the deportation orders were served on the parents. Thus, there is no deportation order in existence relating to the plaintiff. So far as the law is concerned, I was first of all referred to the well-known authority of Re Mohamed Arif (An Infant) [1968] Ch 643, which held that the court should not exercise its wardship jurisdiction where Parliament has given a specific aspect of control over a child, in this case and in that case immigration, exclusively to another agency, but it apepars that Lord Denning thought that there might be exceptional cases where the court could exercise its wardship jurisdiction. I refer to his judgment at p 660. He refers to some of the facts, saying:'each of the children in that case became a ward of court as soon as the application was made to make him a ward of court and he remains a ward of court unless and until an order is made that he shall cease to be a ward of court. Meanwhile, it is said, he cannot be removed from the jurisdiction without the leave of the court because no ward can be removed from the jurisdiction without leave. In answer to this argument two points are taken. First, it is said that once a child has been ordered to be removed there is no jurisdiction to make him a ward of court. I do not think it necessary to determine that point. I can well see that there may be exceptional cases where such a jurisdiction may be desirable. Second, it is said that at any rate even if there is jurisdiction it ought not be exercised in cases like the present one. I think that this second submission is correct. It seems to me that in the Commonwealth Immigrants Act 1962, Parliament laid down a full and complete code to govern the entry or removal of immigrants from the Commonwealth and has entrusted the administration of it to the immigration officers. So much so that the courts ought not to interfere with their decisions save in the most exceptional circumstances. Take the case of the Pakistani boy . . .'I do not think I need to refer to anything further, because it relates to the facts of that case.
I was then referred to Re F (A Minor) (Immigration: Wardship) [1990] Fam 125, [1989] 1 FLR 233. Butler-Sloss LJ had this to say (at pp 129-130; 242-243):'Counsel for the foster-parents in his submissions to us relied upon distinguishing the present case from Re Arif, in particular that since no decision had been made by the Secretary of State there was no interference with any decision made under the Immigration Act 1971, and that the wardship proceedings were not being used to review decisions of immigration officers. He conceded, however, that his main submission to us is that the presence of the child in this country pending any application for adoption and until the determination of any adoption proceedings should be at the direction of the court and not by the grace of the Secretary of State. He did also put before us, as he put before the judge, the need to safeguard the child's well-being independently of the immigration issue, and that there are good prospects of success in the adoption proceedings.There can be little doubt however that the main purpose of the appellants in invoking the wardship jurisdiction was to impede the Secretary of State from exercising his discretion to remove the child from the jurisdiction and to require the Secretary of State to apply to the court for leave. The court, according to Mr Howard, should decide on grounds analogous to those considered in adoption cases, to which I shall refer later. I do not agree with that submission. The use of the wardship jurisdiction to keep the child within the jurisdiction until further proceedings can be initiated and to frustrate the immigration legislation for a short or long period is in my judgment a fetter or clog upon the discretion given by Parliament to the immigration officials and to the Secretary of State and is an abuse of the process of the court. Indeed the issue of the originating summons itself with the automatic warding of the child impedes the Secretary of State from removing the child from the jurisdiction.
This is not to say, however, that wardship may never be instituted in cases where the position of the child concerned is being considered or has been considered under the immigration legislation. I do not think that Hollings J was saying that there is no jurisdiction to continue wardship proceedings in any circumstances where immigration officials may wish to act. That position was left open by Lord Denning MR in Re Arif, and in my judgment, there are cases in which the use of wardship may be necessary for the welfare of the child, bearing always in mind that those occasions are likely to be exceptional and that the jurisdiction must not be invoked or continued in such a manner as to clog the discretion of, or implementation of the decision of, the Secretary of State. It would seem to me desirable that if wardship is to be instituted in the rare cases where it might be appropriate, the plaintiff's claim should indicate on the face of the originating summons that the purpose of the issue of the wardship is to safeguard the welfare of the child while the Secretary of State is considering the immigration implications. If it is intended to be a challenge to the overriding discretion of the Secretary of State, then that issue should equally be made clear in the originating summons.' Lastly, I was referred to Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427, a transcript of which is exhibited to the affidavit of Gillian Griffiths. It was decided by the Court of Appeal on 4 July 1991. In his judgment, Parker LJ says this (at p 429)'It is, in my judgment, abundantly clear that this court cannot directly or indirectly clog, fetter or, indeed, influence or seek to influence the Secretary of State's decision in matters of immigration which are, by statute, committed to him.'And he goes on to say this:
'In this case, the situation at the present moment is that there is no dispute whatever between these two parents about any matter at all. It is possible that in the future there may arise a dispute between them. When the father goes to Bangladesh as a result of the order which will be made against him, there may be disagreements whether they should all go with the father. There might also be a dispute if he were to seek to take the children with him and the mother did not want them to go. In such circumstances, it might be proper for wardship proceedings to commence, but it is in my judgment plain that this is an attempt to influence, in a way which is indistinguishable from clogging, frustrating or fettering, the Home Secretary's decision. As such, it cannot be allowed and must be regarded as an abuse of the process of this court. It attempts to evade the proper exercise by the Secretary of State, or to influence it in a way which is contrary to the will of Parliament, which has committed the matter to the Secretary of State.'Now, in this case the plaintiff appears to be living in England illegally. Mr Elvidge told me that the Home Office intend to deport the mother and to seek a deportation order against the plaintiff. On the other hand, the plaintiff deposes that she is engaged to marry an Indian who is legally living in England. Thus, it does not appear to be a certainty that a deportation order will be obtained against the plaintiff and, even if such an order be obtained, if the plaintiff exercises the appellate procedure under the Immigration Acts, Mr Levy may be correct in saying that the plaintiff would not be deported, in fact, for something like 18 months, whereas the mother may be deported immediately. Thus, it seems to me that there may be a significant period of time, even if the plaintiff be eventually deported, when the care of the children should be provided for and any issues between the plaintiff and the parents concerning the children should be adjudicated upon by this court. Therefore, I consider that this is an exceptional case where the wardship should continue until such time as the Home Office has obtained a deportation order against the plaintiff and her time for appealing such an order has expired. If the intervener obtains such an order, it will override the wardship and all the family will return to Indian. I think that follows from what Russell LJ said in Re Mohamed Arif at p 662G, when he very helpfully sets out the various circumstances in which wardship will not be exercised and continues:
'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.'If a deportation order is not obtained against the plaintiff, then the wardship will continue. I will therefore allow the appeal to the extent that I have indicated and I think that extent should be set out in the order made.
Appeal allowed in part. Wardship continued. No order for costs. The names of instructing solicitors are omitted in the interest of preserving anonymity for the parties.