Re A (Children) (Care proceedings: Asylum seekers)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,The Honourable Mr Justice Munby |
| Judgment Date | 16 May 2003 |
| Neutral Citation | [2003] EWHC 1086 (Fam) |
| Court | Family Division |
| Docket Number | Case No: SE03C00056 |
| Date | 16 May 2003 |
In The Matter Of A (children)
In The Matter Of The Children Act 1989
[2003] EWHC 1086 (Fam)
The Honourable Mr Justice Munby
Case No: SE03C00056
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SHEFFIELD DISTRICT REGISTRY
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr Roger McCarthy QC (instructed by the Head of Legal and Democratic Services) for the applicant (local authority)
Mr Andrew McFarlane QC and Ms Jane Probyn (instructed by Darlington & Parkinson) for the first respondent (father)
Ms Martha Cover and Ms Sarah Phillimore (instructed by Howells) for the second respondent (mother)
Mr Robin Barda (instructed by Cafcass Legal) for the children's guardian
Ms Jenni Richards (instructed by the Treasury Solicitor) for the third respondent (the Secretary of State)
Hearing date: 6 May 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private but the judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
These are care proceedings in relation to A, born on 23 June 1999, and his younger brother E, born on 11 October 2000. The family comes from a non-European country that I shall refer to as Country X. The family —the two boys, their father and their mother —entered the United Kingdom on 14 February 2002.
The facts
Father applied for asylum on 27 February 2002. Mother and the two children applied for leave to remain in the United Kingdom as dependants of the father. All four applications were refused by the Secretary of State for the Home Department. The father's SEF interview took place on 27 March 2002. It was supplemented by a letter written by his solicitors to the Home Office on 3 April 2003. The same day the Secretary of State gave notice of his decision to refuse the application for asylum and to issue removal directions. The reasons for the Secretary of State's decision were set out in letters dated 18 April 2002. The Secretary of State considered that the reason the father had given for claiming asylum was not one that engaged the United Kingdom's obligations under the United Nations Convention (1951) and Protocol (1967) on the Status of Refugees ("the Geneva Convention"). Paragraph 14 of the letter addressed to the father provided in standard form that "You are now required to state any reasons for staying in the United Kingdom which were not previously disclosed". The same statement was contained in each of the three other letters.
Father appealed. His statement of additional grounds claimed that his removal would be contrary to the Human Rights Act 1998 and in breach of articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention"). His appeals under the Geneva Convention and the European Convention were both dismissed by an Adjudicator, Dr A E Thorndike, on 27 September 2002. The Adjudicator, in paragraph 29 of his determination and reasons, found the father "not to be credible at all" and his "whole account to be concocted".
Father applied to the Immigration Appeal Tribunal for leave to appeal. By now he had different solicitors acting for him. They prepared an application for leave dated 14 October 2002. The application was dismissed by the Tribunal (Mr A R Mackey, Vice President) on 8 November 2002. There was no application to the Administrative Court for permission to apply for judicial review.
5. On 6 January 2003 the same solicitors wrote to the Home Office making further representations and inviting the Secretary of State to either reconsider the matter or permit the father to remain in the United Kingdom on an exceptional basis. Those representations were considered and rejected in a letter dated 8 January 2003 The father made no attempt to challenge that decision of the Secretary of State, whether by appeal or by application for judicial review.
On 16 January 2003 the father was detained by the Home Office with a view to being taken to Harmondsworth Immigration Removal Centre. By then removal directions had been given for the family's removal from the United Kingdom on 18 January 2003. The same day (16 January 2003) the father, by then in custody at a police station, was seen by the local authority's worker, JW. She is a support worker in the local authority's asylum team who had been working with the family since February 2002, assisting them and helping them to access appropriate services. She describes him as being extremely distressed and unable to think clearly. "He expressed concerns that his wife was depressed and that she had had thoughts about taking her life." He then made various other statements which JW understandably, and as it seems to me reasonably, understood as implying that he would kill himself and his family She tells me "I have never seen anyone look so fearful as he did at this time." JW took the mother to the police station to visit her husband. Whilst there he told her that the appeal process was exhausted JW took mother home Later the same evening the mother took an overdose of paracetemol and benylin and was admitted to hospital. The emergency duty team arranged care for the children overnight with a local authority foster parent —in fact with JW.
On 17 January 2003 the father was moved to the removal centre at Harmondsworth and placed on suicide watch. Mother was discharged from hospital. Medical examinations of the mother on 17 January 2003 had concluded that she was not suffering any mental illness but was in fear of the deportation order being carried out. She was considered fit for discharge from hospital Arrangements were made for her to be transported to Harmondsworth the next day (18 January 2003) to see her husband with the children. At 8pm that night the local authority made an ex parte application to a circuit judge who granted an interim care order in relation to bath children until 21 January 2003 and also, for the same period, an emergency protection order which, as drawn, was expressed as authorising the local authority "to prevent the children being removed from …" —the remainder of the sentence being left incomplete.
Care proceedings were issued in the county court on 20 January 2003, the application being supported by a statement from a social worker, KS, who explained the basis of the local authority's application as being that in the light of the threats made by father on 16 January 2003 there were reasonable grounds for believing that the children were likely to suffer significant harm if reunited with their parents. The local authority filed care plans prepared by KS dated 20 January 2003. At that stage the father and mother were at Harmondsworth and the children were in local authority care. The care plans contemplated that the children would be placed together with culturally appropriate foster carers pending an assessment of the risk posed by the parents, father in particular. The care plans recorded the local authority's "unresolved concerns regarding the risk of significant harm [the father] poses in light of his threats to kill himse1f, his wife and children" and its uncertainty as to whether he would continue to be detained and, if so, where.
On 21 January 2003 the same Circuit Judge extended the interim care order until 29 January 2003 and transferred the case to the High Court.
On 23 January 2003, the search for suitable foster carers having proved unsuccessful, the mother and children were reunited and moved to live in a family home supervised by the local authority. The father remained in detention. Also on 23 January 2003 the local authority filed revised care plans reflecting these new arrangements but again recording its "unresolved concerns regarding the risk of significant harm [the father] poses in light of his threats to kill himself, his wife and children" and its uncertainty as to whether he would continue to be detained and, if so, where.
On 28 January 2003 the local authority prepared an assessment plan proposing (a) a seven week assessment of mother and father by social workers (this assessment to cover the family history and functioning, parenting capacity and the children's development needs) and (b) an assessment of father by a forensic psychologist.
On 29 January 2003 there was a directions hearing before Holman J. The judge extended the interim care order until 5 March 2003. Having spoken on the telephone to both the Treasury Solicitor and Cafcass Legal and Spec'a 1 Casework ("Cafcass Legal"), Holman J appointed an officer of Cafcass Legal as children's guardian joined the Secretary of State as a party and gave certain further directions.
In accordance with the directions given by Holman J the Secretary of State filed, in the form of a witness statement by one of his officials dated 26 February 2003, a succinct position statement setting out the immigration position in respect of the father, mother and children Helpfully attached to that statement was a copy of R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293. The Secretary of State's position was summarised as follows:
"[Father] and his dependants currently have no legal basis of stay in the United Kingdom and are...
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