Re F (a minor)

Re F (a minor)

COURT OF APPEAL, CIVIL DIVISION

[1990] Fam 125, [1989] 1 All ER 1155, [1989] 3 WLR 691, [1989] 1 FLR 233

Hearing Date: JUNE, 1 JULY 1988

1 July 1988

Index Terms:

Ward of court -- Jurisdiction -- Child subject to immigration legislation -- Child brought to United Kingdom and placed with foster parents -- Child overstaying leave to enter -- Child liable to removal under immigration legislation -- Foster parents applying to make child ward of court -- Whether wardship jurisdiction exercisable if it would fetter immigration authorities' discretion -- Whether court having jurisdiction to make child ward of court.

Held:

F, a minor, was born in Nigeria on 27 April 1981. His father died in July 1982 and nothing was known for certain about his mother. In August 1982 he was brought to England by his aunt on her passport and they were granted leave to enter as visitors for six months. While in England F was placed with foster parents under an informal fostering arrangement with the knowledge of the local social services department. His uncle sent monthly payments to the foster parents for F's maintenance. F lived with the foster parents until December 1986, when, on his own passport, he was taken to Nigeria to visit his uncle. When he returned on 21 January 1987 it was discovered that he had overstayed the six months' leave originally granted. He was granted temporary admission while inquiries were made, and returned to his foster parents, who had been unaware of any restriction on F's entry into or residence in the United Kingdom. The foster parents issued an originating summons to make F a ward of court but on the application of the Secretary of State the wardship summons was struck out as an abuse of process. The foster parents appealed. Before the hearing of the appeal the Secretary of State agreed not to take any steps to remove the child until adoption proceedings commenced by the foster parents had been determined. Held -- It was an abuse of process to use the wardship jurisdiction to keep within the jurisdiction a child who had overstayed his leave to enter thereby impeding the immigration authorities in exercising their statutory power to remove the child, since if the court were to make the child a ward of court in such circumstances it would be putting a fetter or a clog on the discretion given by Parliament to the immigration authorities and would frustrate the immigration legislation. However, there could be rare and exceptional cases where the use of the wardship jurisdiction could be necessary for the welfare of the child pending consideration of his position. On the facts, and having regard to the Secretary of State's decision not to take further action pending the outcome of the adoption proceedings, the court would make F a ward of court while he remained in the country or until further order and to that extent the appeal would be allowed. Re A (an infant ), Hanif v Secretary of State for Home Affairs [1968] 2 All ER 145 considered.

Notes:

For the wardship jurisdiction of the court over a child who is subject to immigration control, see 24 Halsbury's Laws (4th edn) para 577.

Cases referred to in the Judgment:

A (an infant ), Re, Hanif v Secretary of State for Home Affairs [1968] 2 All ER 145, sub nom Mohamed Arif (an infant ) [1968] Ch 643, [1968] 2 WLR 1290, CA. H (a minor) (adoption: non-patrial ), Re [1982] 3 All ER 84, [1982] Fam 121, [1982] 3 WLR 501. W (a minor), Re [1985] 3 All ER 449, [1986] Fam 54, [1985] 3 WLR 945, CA.

Introduction:

Appeal The foster parents of F, a 7-year-old boy, appealed against the order of Hollings J on 22 January 1988 striking out as an abuse of the process of the court an originating summons issued by them on 22 April 1987 to make the child a ward of court. The respondents to the application were the child's guardian and the Secretary of State for the Home Department. The respondent to the appeal was the Secretary of State. The facts are set out in the judgment of Butler-Sloss LJ.

Counsel:

Charles Howard for the appellants. Guy Sankey for the Secretary of State.

Judgment-READ:

Cur adv vult 1 July. The following judgments were delivered. PANEL: RALPH GIBSON, BUTLER-SLOSS LJJ AND SIR EDWARD EVELEIGH

Judgment One:

BUTLER-SLOSS LJ (giving the first judgment at the invitation of Ralph Gibson LJ). This is an appeal from the decision of Hollings J whereby on 22 January 1988 he struck out an originating summons in wardship as an abuse of the wardship process and thereby dewarded the child. The short facts are that the child concerned, F, whom I shall refer to as Tony, is seven, having been born on 27 April 1981 in Lagos, Nigeria. His father died on 7 July 1982. It is uncertain whether his mother is alive or dead. On 28 August 1982 Tony came to England with his aunt, Mrs Farinu, and a friend, Mrs Abedeyo. Tony's name was included on his aunt's passport. They were given leave to enter as visitors for six months. Mrs Farinu placed Tony with the appellants in an informal fostering arrangement, with the knowledge of the social services, who had approved informal fostering by this couple on previous occasions. The appellants were unaware of any restriction on Tony's entry into, or residence in, the United Kingdom. They received monthly payments from Chief Farinu, who said he was the child's uncle and guardian. Infrequent visits were made to see the child, but in December 1986 the foster parents were told that Tony was to be returned to Lagos for Christmas. Mrs Abedeyo took him on 20 December to Nigeria and returned with him on 21 January 1987. At that time Tony had acquired his own passport. Mrs Abedeyo was interviewed by an immigration official on her return and it was discovered that Tony had overstayed his welcome by some three years and ten months. The immigration official gave him temporary admission to the United Kingdom while inquiries were made in Nigeria and he was returned to the care of the foster parents. The exact circumstances of his parentage, the whereabouts of his mother, if still alive, the exact relationship to Chief Farinu or Mrs Farinu were and remain unclear. From a telegram sent from Nigeria it was said that Chief Farinu was the eldest uncle and guardian of the boy and that he was financially responsible for the boy. It also said that the decision to send the boy to England was a family decision and they intended to bring the child back to Nigeria when he was about ten years old. The senior uncle, Chief Farinu, has his own house in London. While the matter was under consideration, on 22 April 1987 the appellants issued an originating summons in wardship and made Chief Farinu the first defendant and the Secretary of State was joined as the second defendant on 8 July 1987. In October 1987 the Secretary of State issued a summons to strike out the originating summons and it was that issue which was heard by Hollings J in January 1988. The effect of the issue of a wardship originating summons is to make the child a ward of court on the making of the application: see the Supreme Court Act 1981, s 41(2). A child ceases to be a ward of court either, if an application for an appointment for the hearing of the summons is not made within 21 days after issue of the summons, at the expiry of that period, or by order of the court to deward: see RSC Ord 90, r 4. A further effect of the wardship is to prevent the removal of the ward from the jurisdiction without the leave of the court. The consequences of the wardship jurisdiction invoked in respect of a foreign child entering the United Kingdom and subject to the immigration legislation was considered in Re A (an infant ), Hanif v Secretary of State for Home Affairs [1968] 2 All ER 145, [1968] Ch 643. In the two cases concerned the immigration officials refused the children admission and the applicants for their entry made them wards of court. During the argument it was conceded by counsel for the Secretary of State that a child of any nationality who is lawfully, albeit temporarily, in England may be made a ward of court. The purpose of the wardship proceedings in those cases, however, was to prevent the removal of the child from the country. Lord Denning MR said ( [1968] 2 All ER 145 at 151--152, [1968] Ch 643 at 660--662):

'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 to be exercised in cases like the present one. I think that this second submission is correct. It seems to me . . . 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 . . . The court will not exercise its jurisdiction so as to interfere with the statutory machinery set up by Parliament. The wardship process is not to be used so as to put a clog on the decisions of the immigration officers or as a means of reviewing them.'Russell LJ said ( [1968] 2 All ER 145 at 153, [1968] Ch 643 at 663):

'The wardship of the 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 [Commonwealth Immigrants Act 1962].'At the hearing before Hollings J in January the argument on behalf of the Secretary of State was that the issue of the wardship proceedings was an abuse of the process of the court, and he relied on Re A (an infant ). Counsel for the appellants sought to distinguish A and pointed to the period that Tony had lived in this country, that the home was the only home he knew, the credentials of the appellants, their desire to adopt the child and their fear that the uncle might move him pending any decision, and there was no way, other than wardship, to prevent him doing so.

The judge found that the main thrust of the submission for the wardship to continue was that, once an adoption application was lodged, different considerations would apply to whether the child should remain in England and he said:

'But of course such a situation has not yet been created in the present case and I do not consider that it would be a legitimate use of wardship proceedings to hold the status quo until that situation has been potentially created by the institution of adoption proceedings. The court would otherwise indeed be exercising its jurisdiction so as to interfere with the statutory machinery set up by Parliament, and be putting a clog on the decision of immigration officers or on the Secretary of State. I agree that the situation of the ward in the present case is vastly different from what it was in Re A (an infant ). If the wardship jurisdiction exists, or should be exercised, then there would be strong grounds for awarding care and control to the plaintiffs and continuing the wardship. But that begs the question, which is whether such exercise of jurisdiction, however justified in itself, is a clog or fetter on the statutory machinery of immigration control. To that there can only be one answer.' (Hollings J's emphasis.

Counsel for the appellants in his submissions to us relied on distinguishing the present case from Re A (an infant), 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 application. 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 counsel for the appellants, 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 on 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 A (an infantand 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. Since, however, the primary purpose of invoking wardship in this case was to circumscribe the powers of the Secretary of State, I entirely agree with the conclusions of the judge on the facts before him in January. We are here considering the problems associated with the arrival in this country of a little boy of seven who, through no fault of his own, overstayed his welcome and whose future is being considered by the Secretary of State. There is no reason to assume, as the judge did not, that the Secretary of State in arriving at his decision will not have regard to the welfare of Tony as well as other considerations. At the time that this matter came before Hollings J no adoption application had been made and after the issue of the wardship summons could not have been properly made without leave of the court. But subsequent to the hearing in January and after the child was dewarded the foster parents issued the application in adoption on 8 May 1988. Different considerations apply in adoption applications. Section 6 of the Adoption Act 1976 requires the court to 'have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood.' Where the proceedings concern a foreign national the court is required to balance the factors in favour of adoption against the factors relating to immigration and the refusal of admission. In Re H (a minor) (adoption: non-patrial) [1982] 3 All ER 84 at 94, [1982] Fam 121 at 133 Hollings J said that the court--

'must pay great regard to the ''immigration decision'' and in particular considerations of public policy and where relevant national security. It must be on its guard against the possibility of abuse but the mere fact that nationality or patriality would result is not conclusive. It must treat welfare as the first consideration, outweighing any one other factor but not all factors.'The Court of Appeal in Re W (a minor) [1985] 3 All ER 449, [1986] Fam 54 approved the decision in Re H. Balcombe LJ indicated the considerations which should apply and said ([1985] 3 All ER 449 at 454, [1986] Fam 54 at 63):

'(3) The court should also consider whether the welfare of the child would be better, or as well, promoted by another type of order which does not have the same effect on nationality and immigration as an adoption order, e order . . .'Before the judge counsel for the Secretary of State declined to give an undertaking not to arrive at or implement a decision until the issue of the adoption proceedings. The situation is now different. The Secretary of State, freed from the constraints of pressure from the wardship proceedings, has indicated in correspondence, about which we were told, that he will not take any steps to remove the child until the adoption proceedings have been determined on certain wholly reasonable conditions, including the hearing of the adoption application within a reasonable time.

There will now be no conflict between the child's status as a ward and the exercise of the discretion of the Secretary of State during the period up to the hearing of the adoption application. The child will, with the agreement of all present, remain in this country and with the appellants. The only matter which remains is whether pending the hearing of the adoption application, a period which with all reasonable diligence may still take months or more, the child should have his position regularised. Counsel for the appellants says with some force that no one within the jurisdiction has any right to take decisions over this child, unless Chief Farinu is present in this country. He has not attended the appeal and has taken no part in these proceedings. Nevertheless, the foster parents fear that he may decide to remove the child. He has not up to now done so, but he has not yet been served with the adoption proceedings. For my part I see some force in the suggestion that for a limited purpose, unconnected with the issue of immigration, the child's position in England should be regularised and his de facto caretakers should have the right during that period to assume responsibility for him subject to the direction of the court, to provide protection for him in the widest sense against any eventuality, including any disaster which might befall him or his caretakers. This case does seem to me to fall within the category of exceptional cases to which I referred earlier where wardship can properly be invoked. In the knowledge that this court is now looking at circumstances which had not arisen before the judge, in my view this court should exercise its discretion to ward the child for such period as the child may remain in this country or until further order. The wardship should run to the determination of the adoption application or until the decision of the Secretary of State that the child be not permitted to enter the United Kingdom. I have phrased it in that way since technically the child has only been permitted to enter on a temporary basis. On either of those two eventualities taking place, the child should be dewarded. If the judge hearing the adoption application decides on some other order, such as custodianship, then no doubt the whole matter would have to be reconsidered before him. In the event that the Secretary of State decides that the child be not permitted to enter the United Kingdom, the child should be dewarded and the originating summons dismissed at the moment that the child leaves the jurisdiction of this court. There are some other matters on which I should like to make some comments. The point of this appeal and the two elements of the argument before this court were clear to counsel on both sides and did not include any argument as to where the welfare of the child lay. In his judgment Hollings J set out that counsel for the Secretary of State conceded that Tony's welfare may be better served if he remains in England. For my part I cannot see the need to reproduce at public expense all the affidavits (ten in all), and other evidence as to the suitability of the foster parents' care long-term for Tony. In my view it is an expensive exercise unnecessary for the decision at which we had to arrive. It was clearly wrong that the Secretary of State had not been informed of the adoption application until the day of the appeal and that equally no directions hearing in the Principal Registry had been sought. We were told of certain difficulties, but they should not be allowed to impede the involvement as soon as possible of the Official Solicitor, whom I am assuming will be invited in the adoption proceedings to represent the child. It will be necessary to hear counsel on details of the order to be made. But consideration will have to be given to warding the child immediately, granting care and control to the foster parents and giving leave to continue the adoption proceedings. This might be a case where it would be appropriate to make the child a party to the wardship proceedings as third defendant and to invite the Official Solicitor to act for him and thereby gain the assistance of the Official Solicitor at the earliest possible stage. I would allow the appeal to the limited extent that I have already indicated.

Judgment Two:

SIR EDWARD EVELEIGH. I agree.

Judgment Three:

RALPH GIBSON LJ. I also agree.

DISPOSITION:

Appeal allowed in part.

SOLICITORS:

Hilliers, Baldock (for the appellants); Treasury Solicitor.