England and Wales Family Court Decisions (High Court Judges)

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.

Neutral Citation Number: [2024] EWFC 159

Case No: ZW20C00484

IN THE FAMILY COURT

SITTING AT THE ROYAL COURTS OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/07/2024

 

Before:

 

MR JUSTICE MACDONALD

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Between:

 

 

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Mr Zimran Samuel (instructed by Mergul Law) for the Applicant

The First, Second and Third Respondents did not appear and were not represented

 

Hearing date: 27 June 2024

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Approved Judgment

 

This judgment was handed down remotely at 2.00pm on 1 July 2024 by circulation to the parties or their representatives by e-mail.

 

 

Mr Justice MacDonald:

INTRODUCTION

1.                  This application demonstrates the need to ensure that the immigration status of a subject child in public law proceedings before the Family Court is clarified at the earliest opportunity and that any issues with respect to that child's immigration status are dealt with before final orders are made.

2.                  The application before the court concerns the position of Y, born in February 2020 and now aged 4 years old. The application is made by Y's Special Guardian, BD.  She is Y's maternal aunt and is represented by Mr Zimran Samuel of counsel instructed by solicitors acting for her pro bono. Y's mother is CK.  She has been served with the application but has not attended the hearing and is not represented.  Y's father is UA.  His whereabouts are unknown. 

3.                  The applicant's application on Form C2 has been issued under the case number for the concluded care proceedings in respect of Y that took place between 2021 and 2022 (the applicant local authority in the previous care proceedings, the London Borough of Barnet, has also been served with this application and has indicated that it supports the application and does not intend to make separate representations).  During the course of his oral submissions, Mr Samuel also suggested that the court could proceed under the inherent jurisdiction of the High Court, although there is no application for relief under the inherent jurisdiction before the court. The applicant's Form C2 states as follows with respect to the relief sought under the Children Act 1989:

"The Applicant seeks an Order of the Court: 1) with a recital requesting the Secretary of State of Home Affairs (sic) grants Y ("Y") British Citizenship under the British Nationality Act 1981 (or an emergency travel document on an interim basis, if this will likely take a long period of time, outside the immigration rules); 2) permitting the Applicant to disclose this Order and material documents from the care proceedings to the HM Home Office and the HM Passport Office; and 3) asserting no order as to costs."

By his Skeleton Argument, Mr Samuel also seeks a further recital to the order clarifying that in December 2022 the court considered it in Y's best interests to live permanently with her maternal aunt in the United Kingdom and that it was expected that her maternal aunt would obtain a British passport for her.

4.                  In determining the application, I have had the benefit of a witness statement from the applicant in support of the application, certain documents from the previous care proceedings and a comprehensive and helpful Skeleton Argument from Mr Samuel, which he supplemented with short oral submissions. 

BACKGROUND

5.                  Y was the subject of care proceedings under Part IV of the Children Act 1989 in 2021.  Those care proceedings culminated in a Special Guardianship Order (SGO) being on 2 December 2022.   The SGO contains, inter alia, the following recital:

"UPON the court noting that the Local Authority will be supporting financially the regularisation of Y's immigration status and including an application for a passport (sic)."

Within that context, the SGO contains the following order with respect to disclosure:

"5. Permission to the Local Authority and [the applicant] to share a redacted form of this order with immigrations solicitors (sic) and Home Office in order to regularise Y's immigration status and / or passport application."

6.                  It would not appear that the court gave a judgment on 2 December 2022.  This court has little detailed information as to what evidence was before the court regarding the Y's immigration status and the steps required to regularise her immigration position in this jurisdiction.  Exhibited to the applicant's statement is letter from the Home Office, dated 15 June 2022 and addressed to the Family Court at Barnet in response to an order from the court, confirming that the mother was refused indefinite leave to remain on 9 May 2018, was granted discretionary leave until 8 May 2021 and had an outstanding application for leave to remain as at June 2022.  The Home Office further confirmed that it had no trace of Y.  Whilst a Cafcass Report dated 16 June 2022 makes no mention of Y's immigration position or of the need to clarify that issue, the statement of the social worker dated 18 November 2022, prepared for the IRH hearing on 22 December 2022 and recommending the making of an SGO in favour of the applicant, confirmed to the court that:

"12. Y does not currently have any immigration status in the UK, so this is something that needs to be established as soon as possible to ensure her identity and stability. The local authority does agree to fund Y's immigration application to ensure that she has status in the UK like her aunt." 

7.                  Also exhibited to the statement of the applicant is a report from a Turkish law firm dated 27 May 2022, which was provided to the local authority during the course of the care proceedings.  That report opines that Y's father is not recognised as her father under Turkish law as the mother was married to another man when Y was born; that Y is a Turkish national by birth because her mother was Turkish and married when Y was born; Y cannot obtain a Turkish passport without submitting an application with supporting documentation; that in the absence of consent from both parents Y cannot travel to Tukey without one of her parents under Turkish law accompanying her; and the SGO will not be recognised under Turkish law unless the applicant applies to the Turkish court to enforce that order.

8.                  In circumstances where the evidence before the court at the IRH on 2 December 2022 demonstrates that it had been confirmed in June 2022 that Y had no immigration status in the United Kingdom and faced difficulties securing immigration status in Turkey, it is not clear from the papers available to this court why steps to regularise Y's immigration position were not taken prior to the court finalising the proceedings or why the court felt able to make a final order when the question of Y's immigration status in this jurisdiction, and indeed in the other jurisdiction with which she had some connection, remained to be established.  The court appears to have simply proceeded on the basis that further steps would be taken with respect to regularising Y's immigration status in this country, with the assistance of the applicant local authority, without any clarity as to what those steps were or the chances that they would be successful.

9.                  In her statement the applicant confirms that, following the granting of the SGO, she applied for a British passport for Y.  It is not clear what steps were taken prior to that application being submitted to confirm that Y was, in fact, entitled to a British passport.  From the documents exhibited to the applicant's statement it is clear that the Passport Office considered that there was insufficient evidence to demonstrate that Y was entitled to a British passport and requested that the applicant provide such evidence.   On 17 June 2023, the Passport Office confirmed that the application for a British passport for Y had been refused.  The grounds for that refusal were as follows:

"Unfortunately, it appears that as Y's mother was not a British citizen or classed as settled in the United Kingdom when Y was born.  Therefore, Y is not eligible for a British passport.  From the information provided Y's claim to British nationality appears to be through her mother.  Unfortunately, you have been unable to provide a full birth certificate including [her] father's details, issued within the first twelve months of [her] birth.  Therefore, I am unable to authorise the issue of a British passport at this time.  Please note, we issue British passports to those who have a claim to British nationality.  Under the British Nationality Act 1981, a child born in the United Kingdom after 31 December 1982 is a British citizen only if one parent is a British citizen or is settled in the UK at the time of the child's birth." 

10.              The applicant goes on to describe in her statement the difficulty she had in obtaining any further information on the immigration status of Y's mother and father in circumstances where the mother resists any form of contact and the whereabouts of the father are unknown.  However, on 4 September 2023 Y's mother confirmed during a telephone call to the applicant's solicitor that she, the mother, did not hold British citizenship at the time of Y's birth.  The mother did not confirm her current immigration status.

11.              The applicant contends that the situation in respect of Y's immigration status has now become urgent in circumstances where Y's maternal grandmother has become ill in Turkey following a significant decline in her health.  In the foregoing context, the applicant states as follows in the final paragraph of the witness statement in support of her application:

"25. I have done everything I can to secure Y's status in the UK and urgently need the assistance of the court to recommend to the Home Office to exercise its discretion to grant Y British citizenship and to recommend that she is granted an emergency travel document outside of the immigration rules, so that we can visit her seriously ill grandmother."

12.              Mr Samuel confirmed that, notwithstanding that the refusal letter from the Passport Office of 17 June 2023 contained advice on how to apply for British Citizenship for Y, no application for British Citizenship for Y pursuant to s.3(1) of the British Nationality Act 1981 has been made by the applicant to date.

13.              Whilst on the face of the applicant's Form C2, the primary application is for a recital requesting that the Secretary of State of Home Affairs grant Y British Citizenship under the British Nationality Act 1981 outside the immigration rules (or an emergency travel document on an interim basis), during the course of his submissions Mr Samuel sought to reframe the application as an application for a disclosure order on which the court is invited to include such a recital. 

14.              In the context of the background set out above, in his Skeleton Argument Mr Samuel submits that this court should give permission to the applicant to disclose the papers from the care proceedings to the Secretary of State for the Home Department to assist with a now intended application under to s.3(1) of the British Nationality Act 1981.  Mr Samuel further asks the court to include on the face of that disclosure order the recitals he seeks requesting that the Secretary of State of Home Affairs grant Y British Citizenship under the s.3(1) of the 1981 Act and clarifying that in December 2022 the court considered it in Y's best interests to live permanently with her maternal aunt in the United Kingdom and that it was expected that her maternal aunt would obtain a British passport for her.

15.              Mr Samuel submits that the court is able properly to place such recitals on the face of the disclosure order that he seeks and should do so in circumstances where:

i)                   Whilst the court has no power under the Children Act 1989, other statute or under the inherent jurisdiction of the High Court binding the Home Secretary in respect of immigration matters, the court is permitted to express requests and opinions to the Home Secretary.  In this regard, Mr Samuel relies on the decision of Holman J in Akhtar v Ayoub [2013] EWHC 3840 (Fam).

ii)                 The SGO was "predicated on the ability of Y to remain in the UK" and expressly states that no person can remove her from the United Kingdom without the consent of every person with parental responsibility or the leave of the court.

iii)               The SGO envisaged that Y "would be granted some form of leave".

iv)               By the terms of the SGO the applicant was expected to obtain a British passport for Y.

v)                  Without Y being granted British Citizenship the SGO granted on 2 December 2022 is "unworkable".

vi)               Given the position under Turkish law as set out in the report from the Turkish lawyers, absent being granted British Citizenship Y is effectively stateless.

vii)             In current situation is preventing the applicant travelling to see her sick mother.  In the circumstances, the SGO is "indirectly and unintentionally breaching the applicant's human rights."

RELEVANT LAW

16.              Section 14C of the Children Act 1989 provides as follows with respect to the effect of a Special Guardianship order:

"Special guardianship orders: effect

(1) The effect of a special guardianship order is that while the order remains in force—

(a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and

(b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).

(2) Subsection (1) does not affect—

(a) the operation of any enactment or rule of law which requires the consent of more than one person with parental responsibility in a matter affecting the child; or

(b) any rights which a parent of the child has in relation to the child's adoption or placement for adoption.

(3) While a special guardianship order is in force with respect to a child, no person may—

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom, without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(4) Subsection (3)(b) does not prevent the removal of a child, for a period of less than three months, by a special guardian of his.

(5) If the child with respect to whom a special guardianship order is in force dies, his special guardian must take reasonable steps to give notice of that fact to—

(a) each parent of the child with parental responsibility; and

(b) each guardian of the child, but if the child has more than one special guardian, and one of them has taken such steps in relation to a particular parent or guardian, any other special guardian need not do so as respects that parent or guardian.

(6) This section is subject to section 29(7) of the Adoption and Children Act 2002."

17.              Section 3(1) of the British Nationality Act 1981 provides as follows with respect to the discretion of the Secretary of State for the Home Department to register a child as a British citizen:

"3 Acquisition by registration: minors

(1) If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen."

18.              Section 3(1) of the 1981 Act confers on the Home Secretary a general discretion to register any child as a British citizen.   The requirements for registration are that the child must be under the age of 18 on the date of the application, must be of good character if they are age 10 years of older and the Secretary of State must think it fit to register the child. 

DISCUSSION

19.              I am satisfied that it is appropriate for this court to permit the applicant to disclose to the Secretary of State for the Home Department and the Passport Office the documents that will be specified in that order.  I am not, however, satisfied that it is appropriate for the court to include in that order a recital requesting the Secretary of State for the Home Department grant Y British Citizenship or a recital summarising the intention of the court at the conclusion of the care proceedings in December 2022.  My reasons for so deciding are as follows, dealing first with the question of recitals.

20.              The precise terms of the recital sought by the applicant with respect to the issue of Y's citizenship is set out in the following terms in the draft order prepared by Mr Samuel:

"REQUEST TO THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Secretary of State for the Home Department is respectfully requested to permit Y (a girl, born February 2020) British Citizenship under the British Nationality Act 1987 (or, alternatively, emergency travel documentation on an interim basis, outside of the regular immigration rules)."

21.              It has long been established that the courts should not make orders that impinge upon or prevent the exercise by the Secretary of State for the Home Department of powers lawfully conferred upon him by Parliament in the context of immigration and asylum, or permit the court's process to be used in a way which impermissibly impacts upon the proper exercise by the Secretary of State of those powers.

22.              In Re Mohamed Arif (An Infant); Nirbai Singh (An Infant) [1968] Ch 643, Lord Denning made clear, in a case concerning wardship brought at a time when control over wards was vested in the Chancery Division, that the court will not exercise its jurisdiction so as to interfere with the statutory machinery set up by Parliament, that such applications are misconceived and that the courts should refuse to entertain them. 

23.              In R v Secretary of State for the Home Department ex parte T [1995] 1 FLR 293 the Court of Appeal held that orders made under the wardship jurisdiction or under the Children Act 1989 could not deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings.  In R v Secretary of State for the Home Department ex parte T the Court of Appeal recognised that an order made by, and any views expressed by, the court in proceedings under the wardship jurisdiction or under the Children Act 1989 may be something to which the Secretary of State should have regard in deciding whether to exercise that power.  Hoffman LJ (as he then was) went on to state, however, that in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State and that:

"...the use of the court's jurisdiction merely to attempt to influence the Secretary of State by obtaining findings of fact or expressions of opinion on matters which are for his decision is an abuse of process."

24.              In Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921 and In R (Anton) v Secretary of State for the Home Department; Re Anton [2005] 2 FLR 818, Munby J (as he then was) re-emphasised the conclusion of Hoffman LJ (as he then was) in R v Secretary of State for the Home Department ex parte T that if, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the Secretary of State and that the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process.  In S v S [2008] EWHC 2288 (Fam), [2009] 1 FLR 241 Munby J (as he then was) again reiterated at [17] that the court must avoid its process being used for some impermissible purpose or in a way which impermissibly impacts upon the proper exercise by the Secretary of State of his powers.  In S v S Munby J was invited in wardship proceedings to make a declaration in respect of a detained child asylum seeker that the subject child's health was of concern and not being properly addressed within the circumstances of his detention.  In rejecting that invitation, Munby J observed as follows:

"[24] The declaration seems to me to be inappropriate for at least two quite separate reasons. First, declarations as a matter of general principle are to be granted in relation to defined legal issues, and in relation to specific matters of controversy. A declaration 'that the subject child's health is of concern' seems to me to fall foul of that salutary principle. Be that as it may, the other reason is this: if one thinks about the implications of the declaration which is sought, namely that the child's health is of concern 'and not being properly addressed within the circumstances of his detention', it is abundantly obvious that the purpose for which that declaration is being sought and the purpose for which - if it was granted - it would be used would be simply and solely to put pressure on the Secretary of State, it being asserted no doubt to the Secretary of State that here you have the considered view of the High Court, here you have the considered view of a judge of the Family Division, that the conditions in which this child is being kept are of concern and that his welfare is not being properly addressed. That seems to me, with all respect to counsel, to be a classic example of an abuse of the wardship process, the purpose not being directly to enhance the welfare of the child - the very form of declaration tacitly accepting that I cannot directly affect the welfare of the child - but intended to put pressure upon the Secretary of State as to the exercise by her of her powers. In other words it seems to me to be, insofar as it is properly a matter for judicial declaration or judgment at all, an attempt - ingenious but nonetheless inappropriate - to persuade the Family Division to embark upon an exercise which, if it is properly a matter for judicial determination (as it may be) is properly a matter for the Administrative Court and not the Family Division."

25.              Whilst I accept at Mr Samuel's urging that in Akhtar v Ayoub Holman J stated that the court may express requests and opinions to the Secretary of State, it is not clear that Holman J's attention was drawn to the foregoing authorities, and in particular to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte T, in which Hoffman LJ (as he then was) held that if, apart from immigration questions, there is no genuine dispute concerning the child, the court must not allow itself to be used as a means of influencing the decision of the Secretary of State and that the use of the court's jurisdiction merely to attempt to influence the Secretary of State by way of findings of fact or expressions of opinion on matters which are for his decision is an abuse of process.

26.              Apart from the ongoing difficulties with respect to her immigration status, there is no extant dispute concerning Y.  As noted above, whilst during his oral submissions Mr Samuel sought to reframe the contents of the Form C2 as an application for a disclosure order on which the court is invited to include the recitals sought, on the face of the applicant's Form C2 the primary application is for a recital in the terms set out above requesting the Home Secretary grant Y British citizenship.  The application for disclosure is secondary and relates primarily to disclosure of the order containing the recital sought.  In this context, it is of note that in the WhatsApp messages from the applicant's solicitor to the mother that are contained in the bundle, the applicant's solicitor states that:

"We have made an application to the family court to ask the family court to recommend to the Home Office that Y be granted British Citizenship.  It would be very helpful if you would sign a form to say you consent to our making this application and to the family court recommending that Y be granted Citizenship."

27.              Having regard to these matters, and notwithstanding Mr Samuel's efforts to reframe it, I am satisfied that the application before the court constitutes an impermissible attempt to influence the Secretary of State by obtaining an expression of opinion from the court on matters which are for the Secretary of State's decision, namely whether or not, if an application is ultimately made, Y should be registered as a British Citizen pursuant to s.3(1) of the British Nationality Act 1981.  That, I am satisfied, is an abuse of process having regard to the authorities that I have summarised above.

28.              Once again, there is at present no dispute in respect of Y justiciable in the Family Court.  Whilst Y's immigration position is undoubtedly difficult, the proper course for the applicant to take is to make the application under s.3(1) of the British Nationality Act 1981.  It may be that upon considering such an application the Home Secretary will, having regard to the fact that Y has been made the subject of a SGO by the English court placing her in the care of the applicant in this jurisdiction and permitting the applicant to exercise parental responsibility for her to the exclusion of her parents, decide to exercise his discretion in favour of registering Y as a British citizen. But that decision is one solely for the Secretary of State for the Home Department under powers conferred on him by Parliament.  It is no part of this court's function to interfere with that decision making process and it would be constitutionally improper for the court to do so.  If the decision made by the Secretary of State is not acceptable to the applicant, then she is able to seek redress in the Administrative Court if she can demonstrate arguable grounds for judicial review having a realistic prospect of success.   

29.              I reach the same conclusion in respect to the recital sought by the applicant recording what are said by Mr Samuel to have been the intentions of the court when making the order on 2 December 2022.  In addition, whilst certain matters appear implicit in the order made on that date, in the absence of a judgment this court has no means now of determining retrospectively the express intention of the court on that date.  In the circumstances, I also decline to add that recital to the order. 

30.              With respect to Mr Samuel's submission that, in the circumstances that have arisen in this case, the SGO is "indirectly and unintentionally breaching the applicant's human rights", that argument has no merit.  As Munby J (as he then was) made clear in CF v Secretary of State for the Home Department [2004] 2 FLR 517, at [24]:

"The Human Rights Act 1998 has not collapsed the fundamental distinction between public law and private law. A case which, properly analysed, is a public law case is not transformed into something different merely because European Convention rights are relied upon."

CONCLUSION

31.              The writ of the Family Court does not run free.  It is, as with the other courts in the jurisdiction, constrained by fundamental constitutional principles.  The Family Court is not able to make orders simply because a child is in a difficult situation or simply because it appears that a particular course of action is in a child's best interests.  The Family Court is required to adhere to the legal, procedural and constitutional boundaries that demarcate its powers.  Save for an order permitting disclosure of documents from the care proceedings to the Secretary of State for the Home Department, I am satisfied it would be wholly improper to grant the other relief sought by the applicant.

32.              The difficulties that have arisen in this case for the applicant and Y could have been avoided, or at least significantly mitigated, had the parties and the court engaged with, investigated and sought to resolve the issues with respect to Y's immigration status at the outset of the previous care proceedings.  In Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) [2023] Fam 77, Moylan LJ made clear that, in circumstances where there are increasing numbers of cases in which the question of immigration status is relevant, it is important that this issue is raised at the outset of the proceedings so that the need for evidence can be addressed at that stage. 

33.              Whilst Moylan LJ's observations in Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) were made in the context of child abduction proceedings under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, they are equally applicable to care proceedings under Part IV of the Children Act 1989, where issues with respect to the child's immigration status may affect in particular the permanence provisions of the care plan that the court is required to consider pursuant to s.31(3A)(a) of the Children Act 1989.  This is not least because that is what is mandated by the Public Law Outline in FPR PD12A.

34.              Part 12 of the FPR and PD12A make clear that in care proceedings under Part IV of the Children Act 1989 the court must consider at the outset of proceedings issues arising from the subject child being a foreign national or the family having a connection to a foreign jurisdiction. PD12A paragraph 1.3 stipulates that in applying the provisions of FPR Part 12 and the Public Law Outline, the parties must have regard, inter alia, to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.  The Pre-Proceedings Checklist in the Public Law outline in PD12A specifies that the Checklist Documents will include foreign orders and judgments and Immigration Tribunal documents.  The Public Law Outline requires the court, within a day of issue, to consider the question of jurisdiction in a case with an international element.  The Standard Directions on Issue and Allocation that the court is required to give within a day of issue include a direction identifying whether a request has been made, or should be made, to a Central Authority or other competent authority in a foreign state or a consular authority in England and Wales in a case with an international element.  The Standard Directions on Issue and Allocation also provide for directions to send requests for disclosure to public bodies in this jurisdiction.

35.              With respect to the question of immigration status, in care proceedings involving a foreign national child or a family with a connection to a foreign jurisdiction, the immigration status of the subject child(ren) and the parents must be considered at the point the proceedings are issued.  This will involve, as a first step, the court making a Standard Direction on Issue and Allocation under the Public Law Outline within a day of issue seeking disclosure from the Home Office via Form EX660 of information on the immigration status of the child and the parents.  Once that information is available, and pursuant to Stage 2 of the Public Law Outline, the parties must at the Advocate's Meeting, and the court must at the Case Management Hearing, identify any issues arising from the child's immigration status and finalise further directions for securing the evidence or expert opinion required to address those issues at the Issues Resolution Hearing, or at the final hearing if one is required, before a final order is made.  It is not acceptable for issues regarding immigration status to be left to be investigated at the IRH or final hearing and even less acceptable for them to be left unresolved at the point the court makes a final order.

36.              I will make an order permitting the applicant to disclose to the Secretary of State for the Home Department those documents from the care proceedings identified in that order.  Otherwise, and for the reasons I have given, the applicant's application will stand dismissed.