FINDLAY v MATONDO and another

Family Division

[1993] Imm AR 541

Hearing Date: 27 May 1993

27 May 1993

Index Terms:

Residence order -- minor citizen of Zaire -- brought to United Kingdom by father -- claim for asylum by father rejected -- Secretary of State proposed to deport father and daughter -- daughter ill-treated and abandoned by father -- placed with foster-carer -- whether court had jurisdiction to entertain an application for a residence order in respect of a foreign national -- the proper approach for the court to adopt -- the relevance of immigration law. Immigration Act 1971 ss 3(1), 8, 16(2), 21(1); Family Law Act 1986 ss 2(2), 3; Children Act 1989 ss 8, 9(6), 13(1)(b).

Held:

The subject of the application for a residence order under the Children Act 1989 was a young citizen of Zaire who had been brought to the United Kingdom by her father. Her father, on arrival had claimed asylum: he had been granted temporary admission but failed to observe the conditions attached to that grant. The court found that while on temporary admission he had ill-treated his daughter and appeared finally to have abandoned her. She was placed with a foster-carer. The Secretary of State refused the father's application for asylum. He proposed to deport both the father and the child to Zaire. On application for a residence order the court considered whether it had jurisdiction to entertain the application on behalf of a foreign national: it also considered the circumstances in which it should intervene and the relevance of immigration law. Held 1. Following Khawaja, the court had jurisdiction to entertain such an application on behalf of a foreign national. 2. To justify intervention, following Mohammed Arif the court must find that there are exceptional circumstances. 3. Although the welfare of the child in such an application was paramount there had to be a balancing exercise with the requirements of public policy. The court could not ignore the immigration law and rely in isolation on issues of welfare. Due attention had to be paid to immigration law and the court had to be satisfied that an application was not designed to circumvent those laws. In those circumstances, to grant the order there had to be "some extraordinary circumstances which take the case outside the normal considerations of welfare". 4. In the circumstances of the instant case, the order would be made.

Cases referred to in the Judgment:

Re A (an infant) [1963] 1 WLR 231: [1963] 1 All ER 531. Re R (Adoption) [1967] 1 WLR 34: [1966] 3 All ER 613. In re Mohammed Arif (an infant) [1968] Ch 643: [1968] 2 WLR 1290: [1968] 2 All ER 145. Re D (an infant) (Adoption: parent's consent) [1977] AC 602: [1977] 1 All ER 145. Re H (a minor) (Adoption: non-patrial) [1983] 4 FLR 85. Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139. Re W (a minor) (Adoption: non-patrial) [1985] 3 WLR 945: [1986] 1 FLR 179: [1985] 3 All ER 449. Re F (a minor) (Immigration: wardship) [1989] FLR 233. Re A (a minor) (Immigration: wardship) [1992] 1 FLR 427. Re K & S (minors) (Immigration: wardship) [1992] 1 FLR 432.

Counsel:

Miss P Scriven QC and Miss M O'Dwyer for the applicant; Miss J Dodson QC for the first respondent; N Garnham for the second respondent; A Verden for the London Borough of Brent; J Posnansky for Fleur Matondo. PANEL: Bracewell J

Judgment One:

BRACEWELL J: In this case the applicant, Mrs Findlay, seeks a section 8 residence order under the Children Act 1989 in respect of Fleur Matondo who was born on 3 April 1981 and who is therefore twelve-and-a-half years of age. She was born in Zaire. Her mother is Mado Buka and her father is the first respondent, Kininga Matondo. Fleur lived with her mother and father in Zaire. She has a sister, Nana, who was born in July 1983 and a brother, Prince, who was born in June 1991. There is a dispute about the family circumstances whereby the father has suggested that he had a second wife who was the mother of Prince and that his first wife had left him in Zaire before he came to the United Kingdom. He claimed that he left the younger children in Zaire and he brought Fleur alone with him to the United Kingdom. Fleur disputes that her father had a second wife or that the mother of the boy, Prince, is anyone other than her mother, Mado Buka. On 14 August, 1991 Mr Matondo arrived in the United Kingdom accompanied by Fleur and sought asylum. He was given temporary admission pending the investigation of his claims. He lived with Fleur in Kilburn, but he failed to comply with various terms of the temporary admission and on 29 November, 1991 he was detained. On that date the immigration service was unable to locate Fleur. She was found on the following day by the police in a Golders Green telephone kiosk apparently abandoned and extremely distressed. She was thereafter accommodated by Brent social services department and placed with the applicant, Mrs Findlay, an extremely experienced foster-carer. She was placed as an emergency. Fleur's condition was such that she was rejecting care and comfort offered by Mrs Findlay. Her English was extremely limited and it was apparent to all that Fleur was under tremendous stress at this time. From approximately December 1991 Fleur received some telephone calls from her father which distressed her. She had a contact visit with her father in February 1992 at a time when he was in detention. Fleur was upset by the visit and did not wish to see her father again for some time. By reason of the excellent care given by Mrs Findlay, Fleur gradually relaxed and became more fluent in English. By spring 1992 Fleur was complaining to the foster-mother that Mr Matondo had physically assaulted her both in Zaire and in the United Kingdom and she alleged that she had been struck with a belt and on one occasion she had been thrown to the ground and had injured her back. She further alleged that when in bed and breakfast accommodation in London she had been beaten with a belt and locked in her room; and she said that her father had tried to sleep in the same bed in London, although there was nothing to indicate any sexual abuse and that aspect is not of any significance in this case. On 25 March 1992 Mr Matondo informed Fleur on the telephone that her mother was dead. This had a tremendous impact on Fleur, who had been extremely close to her mother. The foster-mother requested that a social worker be provided for Fleur. On 28 April 1992 Mr Matondo and Fleur were refused leave to enter the United Kingdom and were ordered to leave on 30 April. On 29 April, the social worker who was allocated organised postponement through the immigration service of the date of removal to allow further investigation of Fleur's circumstances. On 19 May 1992 Fleur was interviewed by a child protection team assisted by an interpreter and a video recording was made. A medical examination revealed nothing of significance. Fleur then requested a second interview which took place on 23 June 1992 and in that interview Fleur alleged incidents of physical abuse at the hands of her father. Father was released from custody on 31 July 1992. On 21 August there was a contact visit between Fleur and her father which was supervised, but there was little affection or communication between them. Throughout this period Fleur was expressing considerable grief at her mother's death, a fear of her father and an unwillingness to return to Zaire with her father. In September Fleur commenced school at Willesden High School where she has settled extremely well. On 25 September the Brent social services department were informed that the immigration service intended to remove the father and daughter from the jurisdiction on 14 October 1992. On October 13 the foster mother, Mrs Findlay, issued an application for a residence order with the consent of the social services department and on 15 October she made application for leave to commence those proceedings. Leave was granted by the District Judge on 21 October. On 30 October the District Judge made a prohibited steps order preventing the removal of the child from the care of the foster-mother or from the jurisdiction until further order or until removal of the child under the direction of the Home Office. The Secretary of State for the Home Department was joined as the second respondent and the Official Solicitor was invited to act on behalf of Fleur. In October 1992 the father informed Fleur that her mother was alive and in November 1992 Mr Matondo filed a statement to that effect, stating that Fleur's mother was living in Angola with other children. In February 1993 Mr Matondo was released from custody. There have been supervised contact visits between Fleur and her father between March and May this year. On occasions Fleur did not attend (and I am satisfied that that was by reason of her wish not to do so) and on other occasions she was polite but distant and returned various gifts to father which she was not prepared to accept. On 7 May 1993 at a supervised contact the father said that he had received a letter from the mother. At a point when the supervising officer left the room Fleur was not willing to be alone with her father and followed the supervising officer out of the room. Status of Fleur The status of Fleur is that father had sought political asylum and Fleur is present in this jurisdiction only pursuant to the exercise of the Secretary of State's discretion to grant her temporary admission. Fleur and her father sought leave to enter under s 3(1) Immigration Act 1971 on 14 August 1991. That was refused on 28 April, 1992. They then had, and continued to have, no right to enter the United Kingdom and it is only as persons liable to detention pending removal that they have been granted temporary admission. The Secretary of State may at any time rescind the temporary admission and remove Fleur and her father from the United Kingdom. They have no right to remain in law and under immigration rules have no prospects of gaining any such rights. It would only be upon the making of a residence order that by virtue of s 13(1)(b) Children Act 1989 there would be a restriction on the Secretary of State removing her from the United Kingdom. By the Immigration Act 1971 and the rules made thereunder, Parliament has established a comprehensive code for regulating and controlling the entry of immigrants into the United Kingdom and their rights to remain here. The legal framework of control applies equally to children as to adults and the courts have been and must be slow and reluctant to intervene. Fleur is not a British citizen and has no right of abode here. The Immigration Act 1971 s 3(1)(a) provides: "Except as otherwise provided by or under this Act where a person is not a British citizen, he shall not enter the United Kingdom unless given leave to do so in accordance with this Act." It is section 8 which gives the power of removal of persons refused leave and illegal entrants. Section 16(2) gives power of detention under the authority of an immigration officer pending the giving of directions and pending removal in pursuance of any directions given. Section 21(1) provides for temporary admission or release of persons liable to detention. Question 1 Does this court have primary jurisdiction to determine the application for a residence order? The first respondent argues that I have no such jurisdiction. Questions have arisen whether in any event the first respondent has any right in law to raise such a preliminary matter. The Secretary of State has submitted that it is open to any party to take an issue of primary jurisdiction. The resolution of that difference of opinion is not necessary for the purposes of this case because the Secretary of State has not waived the point of jurisdiction. The neutral stance does not denote concessions as to jurisdiction and therefore the point is before the court in any event and must be determined. The jurisdiction of the courts in England and Wales is governed in respect of s 8 applications under Children Act 1989 by the Family Law Act 1986. Section 2(2) of the Family Law Act provides that a court in England and Wales shall not have jurisdiction to make an order in a non-matrimonial case unless the condition in s 3 is satisfied. Section 3(1) states that the condition in s 2(2) is that on the relevant date, ie the date of application, the child concerned (a) is habitually resident in England and Wales or; (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom. It might be difficult to argue that Fleur is habitually resident in England by reason of the circumstances of her temporary admission and irregular status, but it is not necessary to determine that point as the alternative of presence within the country suffices. The Children Act 1989 contains no express provisions about the jurisdiction of the English courts over foreign nationals and I find that the matter is governed by the Family Law Act 1986 and the court does have primary jurisdiction to hear and determine the application. Support for that proposition is to be found in R v Home Secretary ex parte Kwawaja [1984] 1 AC 74 in that at p 111F the question was asked: "Does our laws' protection extend to aliens and non-patrials?" The answer given was as follows: "Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection." I am satisfied that this court does have jurisdiction, but the extent to which the court should intervene gives rise to the second question. Question 2 There are no authorities under the Children Act and so far counsels' researches have revealed this as the first application of its kind. I have been referred to a number of authorities by way of analogy. Five relate to adoption cases and four concern wardship cases. I list them: A (an Infant), Re [1963] 1 WLR 231. R (Adoption), Re [1967] 1 WLR 34. D (an Infant) (parent's consent), Re [1977] AC 602. H (a Minor) (Adoption: non-patrial), Re [1983] 4 FLR 85. W (a Minor) (Adoption: non-patrial), Re [1985] 3 WLR 945. F (a Minor (Immigration: Wardship) [1989] FLR 233. Mohammed Arif (an Infant), Re [1968] 2 WLR 1290. A (a Minor) (Wardship: Immigration), Re [1992] 1 FLR 427. K & S (Minors) (Wardship: Immigration) [1992] 1 FLR 432. Two principles emerge from all those authorities and in my judgment represent two distinct hurdles which an applicant must surmount. (i) The court must be satisfied that the application, whether in wardship or under the Adoption Act, is not a device to avoid immigration rules. In many of the decided cases the motivation of the applicant has been to circumvent immigration law and the court has refused to intervene on the basis that the application is an abuse of the process of the court by seeking to clog or fetter the discretion given by Parliament to immigration officials. If the court is satisfied that the application is not contrary to public policy, then (2) In the wardship jurisdiction the court will only intervene if the circumstances are "exceptional" or "most exceptional" in the words of Russell LJ in the Mohammed Arif case. The word "exceptional" has not been legally defined, but has been given its natural meaning of something out of the ordinary. Plainly the decided cases envisage that the jurisdiction should be exercised extremely sparingly. From the analogy of the reported decisions on wardship and adoption, I am satisfied that the test has not altered by reason of the implementation of the statutory framework of the Children Act 1989. Although the welfare of the child is paramount under the Act, there has to be a balancing exercise with the requirements of public policy. Even in those cases where the motivation of the applicant is promoted by welfare considerations alone, the courts cannot adjudicate by ignoring the immigration law and relying on welfare in isolation with the consequence of frustrating the jurisdiction of the Home Secretary or seeking to influence the exercise of that jurisdiction. If it were otherwise, the immigration laws would be meaningless because would-be immigrants would invoke welfare per se as the criteria for permission to remain within the jurisdiction and the immigration laws would be circumvented wholly contrary to the wishes of Parliament. In my judgment the balancing act requires some extraordinary circumstances which take the case outside the normal considerations of welfare. I now turn to the facts of the present case and consider each of the two hurdles in turn. I am abundantly satisfied that the application for a s 8 order is prompted solely by welfare considerations. Mrs Findlay, who is an extremely impressive foster-mother, has become involved in this case by the mere chance of Fleur being accommodated with her by the local authority. Over a period of time thereafter her affection for Fleur has grown and been reciprocated. The applicant's first option, like that of Fleur, is for Fleur to be reunited with her natural mother in Zaire or Angola or wherever the mother may be. Her second option is for Fleur to remain here during her minority in the care of the foster-mother and should the natural mother be traced and be in a position to resume care, then both Fleur and the foster-mother agree that Fleur should be reunited with her mother. That would no doubt entail Fleur leaving this jurisdiction permanently. Father is to be removed and has no realistic chance of avoiding such removal. He is not available as a carer in this country. Mrs Findlay has formed a wholly adverse view of the father and her wish to care for Fleur is based on affection as a substitute mother and a desire to provide for the needs of the child. Her motivation is of the highest and I find no question arises of her seeking to fetter or frustrate the discretion of the Secretary of State. I find that Mrs Findlay surmounts the first hurdle. I turn, therefore, to the second requirement. I am satisfied that this is an exceptional and, indeed, a most extraordinary case. That finding is supported by the Official Solicitor who represents Fleur and by the local authority who support Mrs Findlay's application. The history which has unfolded in this case demonstrates abuse of Fleur by her father of a degree and type rarely seen even in this Division. I make all allowances for father's lack of knowledge of English and the need for an interpreter in Lingala (which is the father's language of origin). I make all allowances for father's lack of familiarity with English life and customs. However, I am driven to the conclusion that father has lied, dissembled, prevaricated, misled not only the court, but the Official Solicitor and his own legal advisers concerning crucial issues affecting his daughter. Truth is a variable commodity for father, who has sought to obstruct the court from discovering the truth about his family and conduct for reasons best known to himself. For him Fleur's welfare is a matter of no concern. He is, I find, oblivious to the impact of events upon Fleur and relies upon his kinship as sufficient reason to explain any conduct. He conceded that Fleur is deeply attached to her mother. I find on the evidence that he removed Fleur from Zaire and from the family home without the consent of her mother thereby causing both the child (and I am sure the mother) deep distress. In effect he abducted her from the only country and home she knew and loved. I reject his garbled account of a second wife who had been caring for Fleur and the siblings. Fleur has been consistent in her account of events and she has no knowledge of a second wife nor of a half-brother. Having brought Fleur to this country, where she did not speak the language, he thereafter informs her that her mother is dead. He did so upon no real basis of fact knowing that the child would be devastated by the news, as indeed she was. Later he told Fleur that her mother was alive, but I find that he has pursued a deliberate policy of preventing any independent investigation to establish the truth. His evidence and statements contain numerous inconsistencies and lies which have effectively prevented proper enquiry by the local authority, the Official Solicitor or the Secretary of State, all of whom have made efforts to trace the mother. He has lied about addresses and telephone numbers. He has claimed to have no information when he did have knowledge. He has permitted this case to be opened to the court on the basis that he had neither the address nor telephone number of the mother and would be unable to produce either. On the second day of this hearing he produced a diary which had been in his possession for some time which purports to contain various telephone numbers; he then claimed in his evidence to have known the mother's address for a period of one month and to have communicated with her. He has obstructed every enquiry and it is a measure of his attitude that on the final day of evidence, having promised to produce a photograph of the mother to assist in identification enquiries, he thereafter neither produced the photograph nor attended court. He has made what can only be described as absurd excuses for failure to cooperate. He has blown with the wind in explanations and he has, I find, deliberately withheld information which was fundamental to the welfare of his daughter. He has laid a trail of deceit, giving different and lying explanations to account for his failure to permit investigation. His lies go to beyond issues of credibility. They are at the root of the case and demonstrate what I can only describe as mental cruelty to Fleur and in consequence she, in her distress, has forfeited the trust which she used to have. She has not only rejected her father, but has such feelings that she cannot bear to be alone in the same room with him. She has returned gifts. She has made it clear that she never wishes to see him again. Such a result is not surprising having regard to his callous disregard of her welfare and that is all the more significant when the only relative Fleur has in this country is her father and yet she has turned against him. I am satisfied that she has reached her own conclusions and has not been influenced by any other party. Her desire for an English education has not founded her animosity as suggested by the father because her deepest wish is to be reunited with her mother in whichever country in Africa it may be possible. I am further satisfied that father has beaten Fleur. She has been consistent in her complaints. She requested the second video interview in order to give her account and father, from an initial denial of hitting her at all in his statement, resiled from that in evidence and went so far as to make an admission of beating as a form of discipline. I reject father as a witness of any truth. He was caught out in so many lies and deceptions that he is not to be relied upon unless there is independent confirmation. I give by way of example a few instances of the many lies. (1) The false name inserted on the school application form in place of Fleur's mother's name. (2) The false accounts inconsistent with each other as to the arrangements for Fleur's care in November 1991 when the truth was that she was abandoned and frightened, knowing little English and was found in a telephone kiosk. (3) The account of the news of Fleur's mother's death, whereby in his statement he asserted that the news came by letter which he handed to the Citizens Advice Bureau. In his evidence he said there was only one such letter. No doubt to his surprise the Home Office produced that very letter which contained no reference to any death. When he gave oral evidence he asserted the news of the death came via Mr Fostain from Belgium, which was a wholly contradictory account. (4) He gave two inconsistent accounts of receiving news of Fleur's mother being alive. In his statement he said it came via Mr Fostain in Belgium; in his evidence he said it came from his wife's sister. (5) he told lies to the Official Solicitor. I find that for reasons which are difficult to even guess at, he has sought to obliterate Fleur's mother from the child's life and has taunted her with subsequent information that she is alive and then deliberately and callously prevented enquiries being made by those concerned only with Fleur's well being. He knows full well the callousness of his conduct, but it troubles him not at all. I am satisfied that Fleur's mother would have contacted her daughter if she could. I reject father's evidence that he spoke to the mother and provided her with Fleur's telephone number and that mother has ignored her daughter. This court has no firm evidence one way or the other to know whether the mother is alive or dead, but instead of assisting the child the father has played a cat and mouse game which renders it wholly unacceptable for Fleur to be in his care. If Fleur were removed from England in the care of her father I would have the gravest doubts about her health and safety, not because of any ill-founded fears of political repercussions which have been dealt with and rejected by the Secretary of State; my fears arise because I do not have the remotest trust that father could treat this child with respect as opposed to violence. There are grave concerns that he would exploit her fear of him, punish her for telling of her beatings and taunt her and lie to her about her mother instead of reuniting them if she be alive. This case demonstrates a total abrogation of parental responsibility and in my judgment comes well within the meaning of exceptional or indeed most exceptional circumstances. This is one of those very rare cases in which the court should and must intervene on behalf of the child. I agree with the Official Solicitor that the court should make a residence order in favour of the applicant. I continue the prohibited steps order against father in terms of the previous order to prevent him from removing Fleur from the care of Mrs Findlay. I also find that there are exceptional circumstances within the meaning of s 9(6) of the Children Act 1989. Fleur has no relatives in this country. She needs protection into adulthood and I order that the residence order will extend to Fleur's 18th birthday. I understand and hope that the local authority and Official Solicitor may continue to make enquiries in order to ascertain the true position regarding Fleur's mother in the hope that it may be possible at some stage for Fleur to be restored to her mother's care during her minority.

DISPOSITION:

Order accordingly

SOLICITORS:

Alexander & Partners, London, NW10 (for the applicant); Jane Coker & Co, London, N17 (for the first respondent); Treasury Solicitor (for the second respondent); Solicitor, London Borough of Brent; Official Solicitor (for the minor).

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