S v S and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MUNBY |
| Judgment Date | 21 August 2008 |
| Neutral Citation | [2008] EWHC 2288 (Fam) |
| Docket Number | No. FD08P01624 |
| Court | Family Division |
| Date | 21 August 2008 |
[2008] EWHC 2288 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Before: Mr. Justice Munby
(In Private)
No. FD08P01624
MRS. U. SOOD appeared on behalf of the Claimant (the cousin of the child's mother)
MISS S. JEGARAJAH appeared on behalf of the First Defendant (the child's mother)
MR. R. KELLER appeared on behalf of the Secretary of State.
I have before me wardship proceedings commenced recently against the background of a failed asylum claim in which, despite the utmost endeavours of the family's legal representatives, every aspect of their claim and their application for reconsideration has failed and been rejected by a succession of tribunals. Most recently it was rejected by Blake J who refused permission in judicial review proceedings ( CO/6818/2008) in an order which, having set out in some detail his observations about the case, described it as being “Totally without merit”. Although he stopped short of providing that a renewal should not be a bar to removal, Blake J expressed his view of the demerits of the case by ordering the claimants to pay the costs and by abridging the time for renewal.
Nothing daunted, those promoting that litigation sought to persuade Blake J in effect to change his mind. That application came before Silber J who, in dismissing it, expressed his complete concurrence with Blake J's observations. Undaunted, an application for renewal was made. It was at that point in what by then was an already protracted history that wardship proceedings were begun by a relative – a cousin of the child's mother – in relation to a child who is a dependent of the asylum seeker mother.
The matter came before Roderic Wood J sitting as a vacation judge in the Family Division last week. He had the advantage of an appearance by counsel instructed by the Secretary of State for the Home Department. In the upshot he made two orders: one providing in substance for the hearing of the wardship proceedings by me today and the other providing in effect for the hearing by me today (immediately following the hearing of the wardship proceedings) of the renewed application for permission in CO/6818/2008. He was facilitated in the making of those orders by the fact that, as it happens, I am a judge nominated to sit in the Administrative Court and also by chance was sitting as a vacation judge in the Family Division this week.
Although this fact was not brought to my attention until the matter was opened before me this morning, the day after that a notice of discontinuance in the judicial review proceedings was filed. Accordingly, when the matter was opened before me this morning, in answer to a very specific question which I quite deliberately put to counsel, I was told that the only remaining matter was the wardship matter, there being no extant proceedings in the Administrative Court. In circumstances which will become readily intelligible in a moment I expressed some scepticism as to the legitimacy in the circumstances of the wardship proceedings, it being the stance of the Secretary of State – whether justifiably or not but certainly understandable in the circumstances – that the wardship proceedings were in effect (if not in intention) merely a device for yet further preventing the Secretary of State from exercising her powers of removal.
I had to adjourn the matter at a point shortly before lunch in order to better understand precisely what the purpose of these wardship proceedings was and precisely what relief was being sought. I invited the claimant's counsel to draft the order which she was seeking. As it happened, I was unable to resume the hearing of this case at 2 o'clock because there was another even more pressing case involving a child which I had to deal with. It was, I confess, with some surprise when the case recommenced before me later in the afternoon that I was told that a fresh application for judicial review had been launched by the claimant, seeking to challenge in the Administrative Court not merely some of the matters which had given rise to the wardship proceedings, but also (as Mr Keller, on behalf of the Secretary of State, pointed out) seeking to revive allegations as to the legality of the child's detention which had formed part of the earlier judicial review proceedings ( CO/6818/2008) whose fate I have already described. I can well understand why counsel for the claimant in all the circumstances took the view that the Administrative Court was a more appropriate forum than the Family Division to litigate the substance of the points which were of greatest concern to her client. In these circumstances the wardship now occupies a less central position in the wider scheme of things than it did at 1 o'clock this afternoon.
I have given directions for the future conduct of the judicial review proceedings which were commenced today ( CO/7979/2008). I have also made an order – once it became apparent that the first defendant in the wardship proceedings was minded to commence yet further judicial review proceedings – requiring those proceedings (if they are to be pursued in such a way as to provide an obstacle to the Secretary of State's powers) to be commenced within a specified time.
Mr. Keller, having to respond without much warning to the existence of CO/7979/2008 and to the threat of the as yet unissued judicial review proceedings contemplated by the first defendant, was minded to argue that they were all abusive and should be struck out; in the alternative that I should make an order here and now that neither was to be a bar to the Secretary of State removing the family if otherwise entitled to do so. That seemed to me in all the circumstances, although I could well understand why the Secretary of State was minded to make such an application, to be an inappropriately Draconian order to make, in effect ex parte. I therefore declined to make such an order, but on the basis – and this explains why I put the first defendant on terms as to the commencement of any further judicial review proceedings – that unless CO/7979/2008 and the new proceedings intended to be commenced by the first defendant are pursued in the one case, and in the other case commenced and pursued in strict accordance with the timetable I have set, then the pendency of those proceedings is not to operate as a bar to the removal of the family.
In these circumstances the Secretary of State could be forgiven for expressing the view (a view which whether well-founded or ill-founded is perfectly properly put before the court) that the wardship proceedings are themselves an abuse of the process, being calculated (in both senses of that word), to hold up impermissibly the Secretary of State's otherwise unfettered ability – as matters stand today – to remove the family. In riposte, it has been forcibly urged upon me, both by counsel for the claimant and by counsel for the first defendant in the wardship proceedings, that whatever may be the effect of the proceedings the motivation of those who have in fact been behind their commencement is not in any way abusive or improper. I have been told that included amongst the moving spirits are school teachers responsible for the boy's education. In short, it has been pressed upon me that whatever the Secretary of State's perception may be, and however enthusiastic other members of the family may be to encourage the commencement and continuation of the wardship proceedings, the wardship proceedings have been commenced for perfectly proper reasons by persons concerned and motivated solely and exclusively by regard for the welfare of the child.
I need not decide between those two very different perceptions of the underlying realities. I am entirely content – but I emphasise without making any such finding and without in any way precluding the Secretary of State, if it becomes appropriate on some future occasion, from pursuing the allegation that the proceedings are abusive – to proceed today on the basis, without so finding, that the proceedings have been commenced bona fide by persons motivated entirely by concern for the child's welfare. That does not, however, mean that they are in all the circumstances an appropriate invocation of the court's jurisdiction.
The child is currently in detention as a dependent of a failed asylum seeker awaiting administrative removal. That detention is prima facie lawful as being exercised by the Secretary of State in accordance with powers conferred upon her by the well known provisions in the Immigration Act 1971.
The complaints, as I understand it, are in outline:
(a) that the detention of the child is unlawful, through failure by the Secretary of State or her minions to comply with the procedural requirements of the Operations' Handbook;
(b) that because for a variety of reasons, so it is said, removal is not imminent, therefore on well-known authority detention is not justifiable; and
(c) that detention is in any event unjustified as being excessive and disproportionate in the circumstances.
As a separate matter of concern is a complaint about the conditions in which the child is being detained and, more particularly, about the adverse impact which his detention – so it is said – is having upon him. That matter, as I understand it, is relied upon primarily as a separate and discrete ground for saying that even if his detention would otherwise be lawful he should no longer be detained, on what one might compendiously call “welfare grounds”, or alternatively that the conditions of his detention should be ameliorated so as to enhance his welfare.
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