England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT EAST LONDON

		11 Westferry Circus London, E14 4HD
		16th October 2015

HER HONOUR JUDGE CAROL ATKINSON :

1. The child in this case is J. He is 7 years of age. His mother is M and father is F. The LBBD issued care proceedings in relation to J on 30^th January 2015. The proceedings are well outside of their 26 week timetable.
2. There has already been one final hearing which was listed in August and had to be adjourned due to failings in the filing of evidence. In recent months there have been multiple case management hearings during which the parties have tried to wrestle information regarding the parallel judicial review proceedings out of solicitors acting outside of the family case. Nevertheless, the final hearing has been carefully case managed by a DJ at this court and is now relisted for a final hearing due to commence on 9^th November 2015. The case has a time estimate of 5 days. A witness timetable has been drafted and lodged. I have satisfied myself today that the case is now ready for trial. By then it will be running at an unacceptable 40 weeks.
3. The case has been listed before me as DFJ for East London because an application has been made to transfer the case to the High Court. That application is reluctantly pursued by the local authority but it is nonetheless pursued. I have refused it. Let me explain why.
4. J currently lives in foster care. Until recently the realistic welfare outcomes were considered to be placement with the father or with the mother. The LA preferred placement with father. The Guardian favours placement of J with his mother. At the hearing before me today I was told that the LBBD, which has failed to file its final evidence in the case on 8^th October as directed, has now changed its position. It no longer supports the father but rather will be proposing that the child is placed with the paternal GF under an SGO. Still the Guardian supports placement of this child with the mother.
5. The mother has no leave to remain in the UK and no recourse to public funds. As a result of her lack of immigration status she is homeless and is not entitled to housing support. I pause to observe that this set of circumstances is not unusual in East London. It is agreed, however, that should the court make an order placing the child in her care then her immigration status is likely to change. In those circumstances she is likely to acquire the right to remain as a carer under the principle set out in Zambrano v Office Nationale de L'emploi [2012] QB 265. With the right to remain – even if derivatively – will come the right to be considered for housing.
6. The LBBD has, I understand, put its case against placement with the mother on the basis of her lack of housing and lack of immigration status seemingly in ignorance of the Zambrano principle but worse in ignorance of the clear direction of the Court of Appeal [Re W (A child) [2013] EWCA Civ 1227] that local authorities must assess carers on the basis of the services that will be available to them. Thus it is that when considering the mother in this case as a potential carer the LBBD must do so on the basis that if identified as the primary carer for J she will likely be entitled to remain in the UK and she will likely be entitled to housing.
7. It is perhaps unsurprising then, against that background, that the mother's solicitors decided to attack the immigration/ housing issue from another angle and issued proceedings for Judicial Review of the LBBD's refusal to provide her with accommodation. After an initial refusal permission was eventually granted limited to consideration of whether the provision of accommodation to M was necessary to secure the Article 8 rights of M and J. Permission was also granted on the issue of whether there should be a child in need assessment but that is not something which concerns me today.
8. The matter was listed before Bobbie Cheema-Grubb QC, sitting as a Deputy HCJ. Judgment was handed down on 8^th October last. The Deputy HCJ was clearly extremely anxious about what appeared to be the Catch 22 situation (my phrase) in which the mother found herself – not acceptable as a carer because she had no recourse to housing as a direct result of her lack of immigration status yet were she to be given care of the child she would have immigration status and housing and might then be acceptable as a carer.
9. I intend no disrespect to the Deputy HCJ by summarising her decision in the following way. She was faced with what seemed to be a worrying conundrum. She considered that she was unable to determine the JR issue as it was "conditional and uncertain". Conditional, it would seem, upon the making of a decision in the mother's favour in the family court – something she acknowledged that she would be unable to do. In an effort to achieve a just result she considered the best way forward would be to transfer the judicial review to a HCJ nominated to sit in the Family Division with a view to the family proceedings being transferred to that same High Court Judge for hearing. She finishes her Judgment by saying "The High Court Judge will be in the best position to look at the interests of J in the round and make the appropriate order in the claim and the family proceedings."
10. I have now seen the order that was drawn. It purports to join the family proceedings with the judicial review application and list them both before a Judge of the Family Division nominated to sit in the Administrative court. I am not sure that this is possible (falling outside of the scope of Rule 29.17 (4) FPR 2010) or what was intended because I am informed that the Deputy HCJ expected that the LBBD would apply for a transfer of the proceedings. That is what they have done.
11. Pursuant to s.39 Matrimonial and Family Proceedings Act 1984

"at any stage in any family proceedings in the family court, the family court may, if the proceedings are transferrable under this section, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to the High Court"

12. The grounds for transfer are quite simply that it was directed by the High Court. It is agreed by the parties that I should nevertheless consider the transfer on its merits not least because I have access to information about the proceedings and the impact of transfer on the proceedings which was not before the Administrative court.
13. The case in this court is listed for a final hearing to commence on 9^th November – in 3 weeks time. Five days of this court's time has been set aside for it to be heard by a DJ. The case is allocated to a DJ. It is agreed that this was and remains the appropriate level of judiciary. It does not need a HCJ. There is nothing complex or unusual in it, even given the immigration and housing issues. It is a straightforward welfare decision.
14. It is also agreed that the fact that the mother has no recourse to public funds, that she may have to press for recognition of her right to remain here after placement of the child, and that as a result of her immigration status she is currently homeless does not compromise her ability to argue that the child should be cared for by her. Further it will not prevent an order being made for the child to live with her if the welfare assessment demands that J should be placed in her care.
15. In the event that such an order is made it will no doubt be made on the basis that if the child lives with her she will likely have a claim to a right to remain and the LBBD will have a housing obligation.
16. Finally, a transfer of this case now will inevitably lead to unnecessary delay. There is no 5 day slot before an Admin ticketed HCJ in the week commencing 9^th November and I am prepared to bet there isn't one this side of Christmas.
17. As LBBD argued before the Admin court – resolve the family case and the JR issue is resolved. The way in which the Deputy HCJ has sought to achieve that is by purporting to join the proceedings. Given the lack of information she was given regarding the proceedings here and the consequences of a transfer I can see that this might have been superficially attractive. However, with the greatest of respect I consider that we have a better chance of achieving a more timely resolution in this case by leaving the family case here. If after the conclusion of the care proceedings that leaves anything for the administrative court to consider it will be able to do so after.