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B, Re (A Minor) [2005] EWHC 1473 (Fam)

Wardship of child cannot interfere with, or override, a deportation order.

Re B (A Minor) [2005] EWHC 1473 (Fam)

Family Division: Sir Mark Potter P (7 July 2005)

Summary
Wardship of child cannot interfere with, or override, a deportation order.

Background
This case concerned the mother (a Jamaican citizen), the father (a UK citizen) and their baby girl born in January 2005. Since the parents were unmarried, the child had Jamaican nationality by virtue of the provisions of section 1 of the British Nationality Act 1981, as no Regulations had yet been made under section 9(1) of the Nationality, Immigration and Asylum Act 2002 which provides for the recognition of unmarried fathers. The parents' families were well known to each other in Jamaica. The mother had entered the UK on a visitor's visa, which had expired in 2002, and she had since been living under the shadow of deportation from the UK but without the Home Office having made any move to deport her.

In April 2005, the child was made a ward of court when the father feared her imminent removal to Jamaica to live there. Soon afterwards, the mother was served with a deportation order addressed to herself and the child informing them that directions had been made for their removal from the UK to Jamaica; it was stated not to be an appealable decision. The mother made clear her position that she did not wish or propose to challenge the notice of removal; and reference was made to the Court of Appeal decision in R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293, in which it was said that the wardship of an infant should not have any effect on the powers and duties of the immigration authorities so as to hamper them in any way in removing the infant from the jurisdiction.

On behalf of the father, it was submitted that the court should request the Home Office to stay its hand and/or at short notice to instruct a representative to attend at court to show why there should not be a short delay in the execution of the notice of removal pending further enquiry and an investigation of the matter by the court in accordance with the directions already given; alternatively, a contact order should be made of which the Jamaican courts might take cognizance in relation to any future dispute.

Judgment
Held, accepting the alternative submission on behalf of the father, that an interim contact order should be made, both in respect of the short period of time before the mother's departure, and for reasonable contact, including staying contact, whenever the father visited Jamaica and whenever the mother was in the UK with the child. Further, it was ordered that the parties were permitted to disclose to a Family Court in Jamaica the judgment for the purpose of applying for a contact order by consent in similar terms to those set out above, with such application to be made within 12 months of the order.

In rejecting the father's primary submission, the President considered that to have taken that course would have been to allow the court to be used as a means of influencing the Secretary of State; and, taking into account ex parte T (above), such a course of action was neither feasible nor appropriate.

Read the full text judgment here