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Caught in the Middle: Children Involved In Both Family and Immigration Proceedings

Alice Clark-Platts considers the relationship between family and immigration proceedings involving children born to parents of mixed nationality, one of whom may be unlawfully present in the United Kingdom.

Alice Clark-Platts, Solicitor

Immigration law and policy and family law in the United Kingdom may at first glance be considered quite separate entities. Yet, increasingly, the two jurisdictions are becoming intertwined. Due to myriad factors (process delay, illegality etc) mounting numbers of asylum seekers and refugees, whilst awaiting confirmation of their status, enter into relationships with others, often of British nationality. If these relationships produce children, a tension can arise between:

A trend appears to be emerging which has been described as a “Gordian Knot”1  between the family and immigration jurisdictions whereby a parent is involved in both sets of proceedings, neither of which may conclude without knowledge of the result in the other. This occurred in the judicial review application of R (on the application of I) v Secretary of State for the Home Department2 which involved the decision by the Secretary of State to deport a national of Nigeria and certain of his children. Concurrent family court proceedings needed to determine parental responsibility for the children and these had yet to conclude. In this instance, it was asserted that the family court could not determine the issue of parental responsibility until it was seised of the outcome of the judicial review. At the same time it was contended that the application for judicial review should await the decision of the family court since the argument advanced on Article 8 ECHR grounds would then be easier to determine. Mr Justice Plender reached the conclusion that it was right however for him to cut the “Gordian Knot” since one court or the other must proceed and the outcome of the judicial review application would simplify or even avoid the necessity for the proceedings in the family court. In this instance, the application for judicial review failed on the basis that no disproportionate breach of Article 8 ECHR could be demonstrated upon returning the family to Nigeria.

As the volume of cases increases which involve the two jurisdictions, this “Gordian Knot” is destined to persist however. The consequence of this may also be that the tangling of the jurisdictions themselves becomes a cause of action: for example, in circumstances where a violation of Article 8 ECHR is alleged in judicial review proceedings should an individual be removed whilst contact proceedings are ongoing at the county court.

Case law in the UK suggests that immigration powers will trump those of the family court in relation to individuals involved in proceedings in both jurisdictions. This has been held to be the case in respect of: Wardship and/or Children Act Orders: for example, in R v Secretary of State for the Home Department ex parte T3; in Residence Orders: in Re E (A Minor) Residence Order,4 where Mr Justice Singer held that if a residence order was made, it should not be used to fetter the duty and discretion of the Secretary of State in matters concerning immigration; and Care Orders: where in City of Bradford MDC v Judith Makamte Leke and the Secretary of State for the Home Department,5 Mr Justice Holman found that in public law proceedings, care orders subject to s.33(7) Children Act 19896 cannot be construed in total statutory isolation: the intention of Parliament must be considered against a wider statutory tapestry7. The court considered that it could not be the case that in enacting such legislation, Parliament intended to completely outflank the immigration powers of the Secretary of State and thus whilst orders can thus be made in conjunction with family and Children Act proceedings (in both a private and public law capacity), their existence should not fetter the powers of the Secretary of State in the exercise of his immigration powers8.

This clarification of powers is helpful in situations where the two jurisdictions meet and/or clash and is particularly useful in circumstances where the family proceedings have concluded in advance of the immigration proceedings or vice versa. In such an instance, the court in question will be informed of the status of the individual as regards his familial relationships or his immigration standing and can thereby deal with the outstanding issues accordingly. Where the proceedings are running concurrently however, the European case of Ciliz v Netherlands9 is useful in its finding that it may, depending on the circumstances, be disproportionate to remove a parent whilst contact proceedings remain unresolved. Yet the legal landscape in this country is less clear. Government policy in respect of the immigration jurisdiction appears to have been to grant an undertaking that such individuals will not be removed whilst the contact or care proceedings in question conclude. This option has fundamental differences from the alternative option of granting discretionary leave to remain. An undertaking does not entitle the individual to work, to claim benefit or, most importantly, the opportunity to apply for the leave granted to be varied. Any application for an extension to the discretionary leave, if refused, would give rise to an immigration decision and thereby an in-country appeal10. This would run counter to the “One Stop” philosophy endorsed by the UK in relation to its immigration policy.11

The Court of Appeal case of MS (Ivory Coast)12 is of assistance in its consideration of whether such an undertaking by the Secretary of State not to remove the appellant pending the outcome of contact proceedings (provided they are pursued expeditiously) is an answer to a claim under Article 8 ECHR, yet it is far from providing a complete answer.

The Court of Appeal recognised that cases where contact proceedings remain outstanding present a problem for the Secretary of State; however it was ultimately unconvinced by the Secretary of State’s position. Whilst it is correct that the decision maker is, to an extent, required to consider a hypothetical situation, it is neither required nor appropriate to speculate about the future. The appellant was entitled to have determined whether removal from the United Kingdom with an outstanding contact application would breach s.6 HRA. That question was capable of resolution one way or the other. What was not appropriate was to leave her in this country in limbo with temporary admission and the promise not to remove her until her contact application had concluded13.

This case demonstrates neatly the legal lacuna into which individuals can fall when they are caught up in proceedings involving both the immigration and family jurisdictions. The Court of Appeal is attempting to set some boundaries in this judgment and encourage the AIT to grasp the bull by the horns in circumstances where contact proceedings lurk in the shadows of immigration appeals. The issue remains unresolved however as to the Secretary of State’s preference for granting temporary admission as opposed to discretionary leave, and the associated problems with this approach were left unexplored in the judgment. Whilst it may be the Secretary of State’s position that the granting of such undertakings is benevolent14, the Judgment is at far remove from providing a set of concrete guidelines in support of this policy or to the contrary, advising its discontinuance.

If it is the case that the jostling for priority by the two jurisdictions of the Immigration Tribunal and Family Court can have the result of creating a “Gordian Knot” which is unresolvable until forcibly untied by the determination of one of the jurisdictions, then a solution is still required to prevent the formation of the knot in the first place. If the removal of the parent subject to immigration proceedings is to take place regardless of the family matter, the likely solution appears to be that the child in question is either placed with the remaining parent and is vulnerable to the success or failure of the removed parent’s application for entry clearance. Or, in cases where the remaining parent is judged unfit or unable to care for the child, he/she is then placed into the care of social services under a care order. In this instance, by the time the removed parent has reached a conclusion on any entry clearance application, it may be too late: the child will be in the care of another family and undoubtedly significant difficulties will transpire in maintaining physical contact with the removed parent, whether they are successful in obtaining entry clearance or not.  Let us not forget also that the family court is unlikely to grant contact to a parent who has recently been or is likely to be removed from the country.

Does the decision in Beoku-Betts v Secretary of State for the Home Department15 provide an answer to this conundrum? There it was argued on behalf of the appellant that considerations of Article 8 ECHR in a s.65 appeal16 should take into account the effect of his proposed removal upon all members of his family unit. In upholding the appeal, the House of Lords considered that nothing could be less convenient for a “One Stop” approach to immigration (as endorsed by the Secretary of State) than having the appellant’s Article 8 ECHR claims taken into account in one proceeding and the other family members’ rights in another17. Thus, the view is upheld that in consideration of this Article 8 ECHR rights must be considered in the round and not just from the perspective of the individual before the court. But is this enough? Strasbourg case law has emphasised the importance of the family unit and that to split up a family is “ interference of a very high order.”18 And yet, the “Gordian Knot” continues apace in these jurisdictions. It is apparent that the rights of children of parents subject to removal are not being considered in conjunction with the rights of the parent. Once the Article 8 ECHR claim of the parent is dismissed, the claim is over. So it would seem that Beoku-Betts has yet to grasp the nettle of the practical reality. Also consider the scenario upon which Beoku-Betts does not focus – where the child will be separated from one parent in order to remove them with another.  If this is the case, why are the Article 8 ECHR rights of the children concerned not being asserted in the family courts and/or immigration tribunal in respect of the removal of their parent?

The procedure for bringing a human rights claim in the context of care proceedings was dealt with comprehensively in the case of Re L (Care Proceedings: Human Rights Claims).19 Mr Justice Munby, addressing this matter in 2003, set out clear procedural guidelines for representatives wishing to bring human rights claims on behalf of their clients during the course of care proceedings or subsequent to them and stated that “...the proper forum was to challenge the care plan in the care proceedings [emphasis added]20.

An important distinction was made between cases in which a final care order had been made and those in which the order was still pending. In the former, the proceedings had come to an end and the court would have no powers under Part IV Children Act 1989 to alter that order. Accordingly, a free standing application under s.7(1)(a) HRA would in that instance be the appropriate course of action. If, however, the proceedings were still pending, human rights claims based on the ECHR can and should be dealt with within the context of the pending care proceedings21 under s.7(1)(b) HRA.

Section 6 HRA provides that it is unlawful for a public authority to act in a way which is incompatible with the ECHR. Section.8 HRA provides that, in relation to any act or proposed act of a public authority which the court finds is or would be unlawful, the court may grant such relief or remedy or make any order which it considers to be just and appropriate.  Mr Justice Munby stated that in light of this, it would only be in a wholly exceptional case (the type of which he had difficulty envisaging) that it would be appropriate to hive off the human rights arguments for hearing in the Family Division whilst the care proceedings continued in the county court or family proceedings court. Furthermore, human rights arguments should be identified and brought to the attention of the court at the earliest possible opportunity. This is particularly important in cases involving care decisions in which the advisable timetable is for conclusion within nine months22.

The Court of Appeal case of Re V (A Child) approved Mr Justice Munby’s findings. Lord Justices Wall and Tuckey found the advocates in the county court matter to be severely lacking in not bringing Re L to the Judge’s attention in the lower court thereby causing serious delay to the matter by instigating the Court of Appeal hearing23. The Court of Appeal referred to the Protocol for Judicial Case Management in Public Law Children Act Cases24 and stated that it was very much hoped that adherence to that Protocol would prevent the occurrence of the “unhappy events” in this case25. The Panel went on to say that:

“Lawyers acting in care proceedings for parties in the position of these parents have a duty proactively to cooperate in obtaining the evidence which is required to address the issues in this case.”26

For whatever reason, it was apparent in that matter that the relevant representatives were either unaware of or not concerned to make mention of these developments in their pleadings. Nevertheless, these cases illustrate that there is an approved set of guidelines available to practitioners who may be required to raise human rights claims in the context of family proceedings.
A recent case indicates however that the last six years have not improved matters significantly – particularly in communications between the jurisdictions of the family and immigration courts. In the matter of M and N (Children)27 sets out the court’s frustration at the lack of communication on both sides, in situations where the outcome of the immigration proceedings is highly material to the decision of the family court. There Mr Justice Munby found that:

“It is my experience – based on too many such cases – that too often, though there are honourable exceptions, those acting for a parent in family proceedings who is also party to concurrent asylum or immigration disputes with the Home Office...are quite unable to answer with any precision even the simplest and most obvious questions from the bench about what has been going on and what the “current state of play” is on the other matter.”28 

Inter alia, he made the following observations with suggestions how to improve the situation moving forward:29

1) The family court needs the fullest and most up-to-date information. This is particularly important where the outcome of the family court is likely to be affected by the decision of some third party e.g. the Secretary of State for the Home Department;

2) Due to the way the modern legal profession is structured, different solicitors and counsel can act for the same client in the two sets of proceedings. With this comes a “...fragmentation of knowledge and responsibility. But at the same time it imposes additional burdens and responsibilities on family practitioners: in particular, the ongoing duty to remain au courant with what is going on elsewhere even if the matter is being handled by other professionals.”

3) Those involved in family proceedings have a duty to find out the state of affairs with other hearings before the hearing takes place in the family court. This also places an onus on the parents concerned to provide full and frank disclosure to their representatives; and

4) “The fact [is] that many family practitioners lack anything more than a fairly rudimentary knowledge of immigration or asylum law and practice...Too often therefore, when answers to even quite basic questions are forthcoming it is painfully apparent that what one is being told simply cannot be correct. I make the point not to criticise practitioners, who in the modern world of specialisation and sub-specialisation cannot be expected to keep themselves up to date with or to understand the minutiae of other areas of law, but to emphasise a practical point...the problem works both the scope for misunderstanding and confusion is increased.”

In circumstances whereby the swell of the family and immigration courts wash up on the same shore, a “Gordian Knot” has emerged; encircling the different sets of proceedings camouflaged by philosophical debates regarding rights and the ability of children to express them and, in doing so, becomes impossible to break.

The effect of Beoku-Betts is to offer protection to those subject to immigration proceedings with children in the UK who may not necessarily be removed with them to their country of origin and ensures that the AIT must consider those children’s rights in the course of the proceedings. From this viewpoint however, the rights of the child are still being considered from the perspective of the adult i.e. in conjunction with the claim of the parent.

The procedure for bringing a human rights claim within both private and public law family proceedings is clear and Mr Justice Munby’s dicta in M & N provides further guidance. Yet the lack of communications between different sets of representatives; of human rights training; and a general lack of knowledge sharing between the two jurisdictions are important factors in respect of this dearth. As the frustration of the court in the judgments outlined above demonstrates, these are rectifiable errors which must be achieved in order to better protect children. Serious decisions which may have the result of splitting a family apart must surely be taken in the fullest sense – with all possible options debated and articulated. If not, how can it be said that we are protecting children’s welfare?

These issues have sensitive policy implications not least because they involve the political tinder box that is immigration policy and law. Questions also surround the efficacy of introducing rights based reasoning into the family context – will this erode the very nature of the family by endorsing individualism and selfishness? Yet this fear seems to miss the point: if it is true that one of the functions of family law is to express contemporary values and beliefs about the family30 then we must recognise the changing nature of society and the encompassing of those from other cultures, who interact with those with official rights of abode in this country. Whatever the nature of the origins of those relationships, they do exist and they and their progeny cross borders. Whilst the political ramifications of this may be all consuming, this reality cannot be ignored in either a rights culture or indeed (less controversially perhaps) the UK legal landscape.

1 - Reference to the intricate knot tied by Gordius, the king of ancient Phrygia, which had need of being cut by Alexander the Great as opposed to being merely untied

2 - [2009] EWHC 333 (Admin)

3 - [1995] 1 FLR 293

4 - [1995] Imm AR 475

5 - [2007] EWHC 158 (Fam)

6 - This states that children subject to a Care Order may not be removed from the jurisdiction without the written consent of everyone who has parental responsibility for the child and/or the leave of the court.

7 - Leke Ibid at paragraph 46

8 - See also Re F (A Minor) (Immigration: Wardship) [1990] Fam 125

9 - 11 July 2000 29192/95

10 - S.82(2)(d) Nationality, Immigration and Asylum Act 2002 (the “2002 Act”)

11 - See submissions of Counsel for the Secretary of State in MS (Ivory Coast) [2005] EWCA Civ 133 at paragraph 51

12 - [2007] EWCA Civ 133

13 - See [2007] EWCA Civ 133 at paragraph 72 of the Judgment of Lord Justice Scott Baker

14 - MS (Ivory Coast) Ibid at paragraph 51

15 - [2008] UKHL 39

16 - Of the 1999 Act which states that a person may bring an appeal to an adjudicator in relation to any alleged breach of his human rights in connection with a decision relating to his entitlement to enter or remain in the United Kingdom

17 - See Judgment of Lord Brown of Eaton-Under-Heywood

18 - Sezen v The Netherlands (2006) 43 EHRR 621 at paragraph 49

19 - [2003] EWHC 665 (Fam)

20 - Re C (Adoption) Ibid at paragraph 51

21 - Re L Ibid at paragraph 31.

22 - Re L Ibid at paragraph 34

23 - [2004] EWCA Civ 54 at paragraphs 104 and 108

24 - [2003] 2 FLR 719 now updated as the Public Law Outline

25 - Re V(A Child) Ibid at paragraph 120

26 - Re V (A Child) Ibid at paragraph 122

27 - [2008] EWHC 2281 (Fam)

28 - Re M and N Ibid at paragraph 27

29 - Re M and N Ibid at paragraphs 30-36

30 - C.E Schneider (1992) The Channelling Function in Family Law Hofstra Law Review 20(3) 495-532 cited in M Henaghan and P Tapp Judicial and Legislative Conceptions of Childhood and Children’s Voices in Family Law in A.B.Smith, M Gollop, K Marshall and K Nairn (2000)