Re F (A Minor) (Wardship: Immigration)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE BUTLER-SLOSS,SIR EDWARD EVELEIGH |
| Judgment Date | 01 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0701-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0571 |
| Date | 01 July 1988 |
[1988] EWCA Civ J0701-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE HOLLINGS
Royal Courts of Justice
Lord Justice Ralph Gibson
Lord Justice Butler-Sloss
Sir Edward Eveleigh
88/0571
MR C.A.F. HOWARD, instructed by Messrs-Hillier (Baldock), appeared for the Appellant (Plaintiff).
MR GUY SANKEY, instructed by The Treasury Solicitor, appeared for the Respondent (First Defendant).
I will ask Lord Justice Butler-Sloss to give the first judgment.
This is an appeal from the decision of Hollings J. whereby on 22nd 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, whom I shall refer to as Tony, is seven, having been born on 27th April 1981 in Lagos, Nigeria. His father died on 7th July 1982. It is uncertain whether his mother is alive or dead. On the 28th 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 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 20th December to Nigeria and returned with him on 21st 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 10 years old. The senior uncle, Chief Farinu, has his own house in London.
While the matter was under consideration, on 22nd April 1987 the appellants issued an orignating summons in wardship and made Chief Farinu the first defendant and the Secretary of State was joined as the second defendant on 8th 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. (Supreme Court Act 1981, section 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. (Order 90, rule 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 in re Mohammed Arif [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 M.R. said at page 660:
"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 is 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 that…Parliament laid down a full and complete code to govern the entry or removal of immigrants from the Commonwealth and has entrusted the admistration 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." At page 662 he said:
"The court will not exercise its jurisdiciton 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 L .J. said at page 663:
"The wardship of 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 Act."
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 Arif. Counsel for the foster parents sought to distinguish re Arif 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 foster parents, 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 the case of Arif. If...
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