England and Wales High Court (Administrative Court) Decisions

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Cite as: [2004] EWHC 2731 (Fam), [2005] 2 FLR 818, [2004] EWHC 2730 (Admin)

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Before:

THE HONOURABLE MR JUSTICE MUNBY

Neutral Citation Number: [2004] EWHC 2730/2731 (Admin/Fam)

The Law Courts

Quayside

Newcastle-Upon-Tyne, NE1 3LA

Date: 23 November 2004

Case No: CO/5263/2004

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Between :

	R (on the application of FAMILY ANTON)	Claimants
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant

- - - - - - - - - - - - - - - - - - - - -

Mr Jonathan French (instructed by Halliday Reeves) for the claimants

Mr Parishil Patel (instructed by the Treasury Solicitor) for the defendant

Case No: MB04P01677

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

MIDDLESBROUGH DISTRICT REGISTRY

In the matter of ROBINSON ANTON (a minor)

And in the matter of section 41 of the Supreme Court Act 1981

And in the matter of the Guardianship of Minors Acts 1971 and 1973

Between :

DAWN TRACY BOLLEN

Plaintiff

- and -

(1) SEBASTIAN ANTON

(2) NIRMALA ANTON

(3) ROBINSON ANTON

Defendants

- - - - - - - - - - - - - - - - - - - - -

Mrs Sally Bradley QC and Miss Gillian Matthews (instructed by Kathy Webb & Co) for the plaintiff

Mr Giles Pinkney (instructed by Vickers Chisman & Wishlade) for the first and second defendants

Mr Justin Gray (instructed by David Gray & Co) for the third defendant

Mr McDermott (instructed by Cafcass Legal Services and Special Casework) for the third defendant's guardian (Mr David Smith)

Mr Parishil Patel (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department

Hearing date (in Newcastle-Upon-Tyne) : 29 October 2004

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN

Mr Justice Munby :

1. I have been sitting simultaneously as a nominated judge of the Administrative Court hearing judicial review proceedings (CO/5263/2004) and as a judge of the Family Division hearing proceedings in wardship and under Part II of the Children Act 1989 (MB04P01677). I shall refer to them as the judicial review proceedings and the family proceedings respectively.

The background

2. Each set of proceedings involves one or more members of the Anton family: the father, Sebastian Anton, the mother, Nirmala Anton, and their four children, Ramila (born on 30 April 1984), Raminsan (born on 14 April 1986), Robinson (born on 26 January 1989) and Ramiya (born on 22 May 1994). They are from Sri Lanka. They entered the United Kingdom on 7 October 2000 and went to live on Teesside. The father applied for asylum. His asylum claim was refused by the Secretary of State for the Home Department on 28 November 2000. He appealed and on 9 May 2003 his appeal was allowed. The Secretary of State applied to the Immigration Appeal Tribunal for permission to appeal. Permission was granted. The Immigration Appeal Tribunal allowed the appeal on 18 December 2003. So the father's claim for asylum ultimately failed. He did not appeal.

3. On 6 January 2004 the father's Member of Parliament, Mr Dari Taylor MP, made representations on the family's behalf to the Secretary of State. On 20 February 2004 the Secretary of State rejected those representations. Further representations were made on 9 March 2004. The Secretary of State rejected those further representations on 26 March 2004.

The litigation

4. On 5 August 2004 the Secretary of State gave Notice of Removal Directions for the removal of the entire family to Sri Lanka on 10 August 2004. On 10 August 2004 wardship proceedings in relation to Robinson were commenced by the issue of an originating summons out of the Middlesbrough District Registry. The plaintiff was Dawn Tracy Bollen (Mrs Bollen). I will explain in due course the reasons for and the nature of her involvement. The matter was brought immediately before District Judge Hall who made an ex parte order the same day that Robinson "be made a ward of this Honourable Court during his minority or until further order" and, by paragraph 2, that "no person/s shall cause the said child ... to be removed from the Jurisdiction of this Court pending further order." In the light of these developments the Secretary of State decided not to proceed with the removal of the family. I understand they were actually on the airplane waiting to leave when the news came through.

5. The family proceedings came before his Honour Judge Bryant (sitting as a Deputy High Court Judge) on 13 August 2004. He had before him an affidavit sworn by Mrs Bollen on 10 August 2004 pursuant to an undertaking that had been given to District Judge Hall earlier the same day. Judge Bryant made an order that Robinson be made a party to the proceedings, that an officer of CAFCASS be appointed his guardian in accordance with FPR 9.5, and that Robinson was to remain a ward of court. He directed that the Home Office was to be asked what its intentions were with regard to the Anton family as a whole and with regard to Robinson and about its attitude to any application made by Mrs Bollen for a residence or other order under section 8 of the 1989 Act. He granted Mrs Bollen leave to apply for residence and leave to disclose her affidavit to the Home Office and listed the case for a further directions hearing before himself on 10 September 2004.

6. The court's request for information was conveyed to the Home Office by the office of the President of the Family Division in a letter dated 16 August 2004. The material part of the response dated 25 August 2004 was in the following terms:

"I can confirm that it remains the Immigration and Nationality Directorate's (IND) intention to remove the entire family to Sri Lanka.

I can confirm that it remains the intention of the IND to remove Robinson Anton to Sri Lanka as part of his family. Should Robinson Anton remain in the United Kingdom it would then be the IND's intention to remove him into the care of the Sri Lankan child-care authorities.

With regard to the application by Miss Bollen for a residence order or any other order under section 8 of the Child Care Act 1989, it is the opinion of the IND that any such application is not based on any child-care or protection issues, but rather on a desire to prevent or delay the lawful removal from the United Kingdom of Robinson Anton and/or to prevent or delay the lawful removal from the United Kingdom of Sebastian Anton and his dependants."

The Secretary of State's position was clarified in a further letter dated 8 September 2004:

"I would like to reiterate that the Immigration and Nationality Directorate's (INDs) intention is to remove the whole Anton family. INDs position will not change even if Miss Bollen is granted a Wardship order in respect of Robinson Anton. Whilst family proceeding will be taken into consideration by the Home Office they do not prevent the Home Secretary from exercising his immigration powers under the immigration acts to remove a person from the United Kingdom."

7. As directed, the family proceedings came back before Judge Bryant on 10 September 2004. He had before him a position statement dated 9 September 2004 filed on behalf of the Secretary of State which drew attention to, and set out extensive extracts from, the judgment of Hoffmann LJ (as he then was) in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293. That apart, the Secretary of State was neither present nor represented. Judge Bryant directed that Mr David Smith of CAFCASS Legal be appointed Robinson's children's guardian, that the father and the mother file statements setting out their position by 13 September 2004 and that Mr Smith file a report on Robinson's position by 22 September 2004. He adjourned the matter to be heard by Bodey J at Newcastle-Upon-Tyne on 23 September 2004 and directed that the Home Office attend that hearing "if they so wish".

8. Pursuant to Judge Bryant's directions the father and the mother filed statements each dated 13 September 2004 and Mr Smith filed a report dated 17 September 2004, giving details of his meeting with Robinson on 15 September 2004.

9. On 21 September 2004 the Secretary of State gave Notice of Further Removal Directions for the removal of the entire family to Sri Lanka on 29 September 2004.

10. On 22 September 2004, and in circumstances that I must return to consider in greater detail in due course, the hearing before Bodey J was vacated and the case was re-listed to be heard by me, at Newcastle-Upon-Tyne, on 1 November 2004. Suffice for immediate purposes to say that the hearing was vacated by agreement between the solicitor acting for Mrs Bollen, Mr Carl Reed of Kathy Webb & Co, and Ms Shafi Nasser, the representative of the Treasury Solicitor acting for the Secretary of State.

11. Also on 22 September 2004 Mr Parishil Patel, counsel instructed by the Treasury Solicitor on behalf of the Secretary of State, prepared a position statement for the hearing on 23 September 2004, though it appears not to have filed with the court or served on any of the other parties until much later (see below). Longer and more elaborate than the earlier position statement prepared for the hearing on 10 September 2004, Mr Patel's position statement drew attention to, and set out extensive extracts from, not only the judgment of Hoffmann LJ in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 but also my more recent judgment in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921.

12. Later on 22 September 2004, but after the hearing fixed for 23 September 2004 had been vacated, the solicitor acting for the Anton family, Miss Claire Ganning of Halliday Reeves, discovered the fact that Removal Directions had been given the previous day. She promptly communicated that fact to Mr Reed. There was a flurry of activity that day and the next (23 September 2004). On 24 September 2004 Mr Reed made a "without notice" application by telephone to Bodey J. On Mr Reed's undertaking to file and serve a statement of the matters relied on in support of the application by noon on 27 September 2004, Bodey J made an order providing (paragraph 1) that "The Home Office do not remove or cause to be removed from the jurisdiction the said ward without the leave of a High Court Judge." He directed that the matter was to be re-listed before me on 1 November 2004 "for determination as to the issues as between the wardship and the deportation of the ward". He gave the Home Office "Liberty ... to apply in the meantime on written notice to [Mrs Bollen's] solicitors to vary or discharge this Order."

13. Pursuant to the undertaking he had given to Bodey J, Mr Reed made and filed a statement dated 27 September 2004. Subsequently the hearing before me which had been fixed for 1 November 2004 was re-fixed with my approval for 29 October 2004.

14. On 8 October 2004 Miss Ganning wrote to the Home Office making further representations as to why the family should be allowed to remain in the United Kingdom on compassionate and humanitarian grounds. She made the point that the family had arrived, on 7 October 2000, only five days after the cut-off date, 2 October 2000, of an amnesty to which, she said, they would otherwise have been entitled. There has not as yet been any response from the Secretary of State to this letter.

15. On 11 October 2004 Ms Nasser wrote me a letter which, after setting out a brief history of the proceedings, concluded as follows:

"My purpose in writing to you is to request if you could sit in the High Court as a Family Law Judge in order to hear this matter. There is some urgency about this case as the family are subject to removal and indeed, removal directions have been set for them on a number of occasions but because of these proceedings, removal has not been effected. It is the Secretary of State's view that these family proceeding have been commenced simply as a device to prevent removal and to obstruct the Secretary of State's power under the Immigration legislation to remove this child and his family. In order to assist you, I enclose a copy of the Position Statement of the Secretary of State that has not yet been filed in these proceedings but will be made available to all the parties shortly.

I should be grateful if you could confirm that you would be able to sit for one day as a Family Law Judge at the Royal Courts of Justice at some time in the next two weeks."

There was nothing to indicate that this letter had been copied to any of the other parties or that anyone else was aware of the approach being made to me by the Treasury Solicitor. It will be appreciated that in acting in this manner the Treasury Solicitor was omitting to give Mrs Bollen's solicitors the written notice which had been provided for by Bodey J's order. (In saying this I do not overlook the fact that on 27 September 2004 Ms Nasser had written to Mr Reed saying that "the Home Office ...will be seeking to list this matter before Munby J in London at the earliest opportunity", but it could not seriously be asserted - and is not in fact asserted - that this amounted to the written notice contemplated by Bodey J's order.)

16. Knowing virtually nothing about the case at that stage beyond what Ms Nasser was telling me, I arranged to obtain from the Middlesbrough District Registry the copy of the bundle that had been lodged for the purpose of the vacated hearing on 23 September 2004, together with copies of the further documents that had been put before Bodey J on 24 September 2004 and a copy of his order.

17. On 15 October 2004 I made an order in the following terms:

"UPON READING (1) the bundle lodged with the court for the hearing on 23 September 2004 (2) the orders dated 10 September 2004 and 24 September 2004 (3) a letter from the Treasury Solicitor dated 11 October 2004 and (4) the Position Statement enclosed with that letter

AND the Judge treating the letter as an ex parte application that the case be listed for hearing before Mr Justice Munby in London during the period 11-22 October 2004 notwithstanding that it is already listed for hearing before him in Newcastle on 29 October 2004

AND it appearing to the Judge that there is no good reason (a) why that application was not made on proper notice to the other parties (b) why the case should be heard in London rather than Newcastle and (c) why the case should be heard during the week commencing 18 October 2004 rather than on 29 October 2004

BUT it appearing to the Judge that it is appropriate to give certain directions additional to those contained in the orders dated 10 September 2004 and 24 September 2004

AND the Judge noting that notwithstanding what has previously been said to the Court (a) the only proceedings before the court are these wardship proceedings (b) the plaintiff has not so far as he is aware applied for a residence order and (c) there are so far as he is aware no relevant proceedings pending in the Administrative Court

IT IS ORDERED by the Court of its own motion that

1 The Treasury Solicitor's application be dismissed.

2 Without prejudice to and by way of addition to the directions contained in the orders dated 10 September 2004 and 24 September 2004:

(a) the hearing at Newcastle on 29 October 2004 before Mr Justice Munby is for directions and if appropriate summary disposal of the proceedings;

(b) if the plaintiff or either of the defendants intends to commence any further proceedings or make any further application in relation to the ward (whether in the Family Division or in the Administrative Court) they must do so no later than noon on 27 October 2004: any such proceedings or application will be considered by Mr Justice Munby at the hearing at Newcastle on 29 October 2004;

(c) the plaintiff and the defendants and the ward's guardian must file and serve (on the other parties and on the Treasury Solicitor) by no later than 4pm on 28 October 2004 any further evidence that they wish to rely on either in the present proceedings or in any further proceedings that may be issued in accordance with paragraph (b)."

18. Later the same day (15 October 2004) my Clerk received an e-mail message from Mr Reed acknowledging receipt of my order and asking "if the court could provide us with a copy of the position statement it has received from the Treasury Solicitor, since, despite repeated requests of them, we have not been provided with a copy." My Clerk supplied Mr Reed with a copy of Mr Patel's position statement.

19. On 18 October 2004 Mrs Bollen issued an application for a residence order in respect of Robinson.

20. On 25 October 2004 the Secretary of State gave Notice of Further Removal Directions for the removal of the entire family to Sri Lanka on 2 November 2004. Later the same day my Clerk received the following e-mail message from Mr Reed:

"We have been contacted by Miss Ganning, solicitor on the part of the Anton family, in respect of Immigration matters. She informs us that the Home Office have issued a removal notice in respect of the family, to be effected on Monday 1st November 2004. It is her intention to lodge application to Judicially Review this decision and, pursuant to the order of Mr Justice Munby, for this to be listed at the forthcoming hearing on Friday. However, she has explained to us that the Legal Services Commission will not fund representation in respect of this application without an order of the court, since the matter has not first been through the paper application stage.

It is our understanding that Mr Justice Munby wished for all those involved in the matter to be before him in order that he could consider the case in its totality. We therefore wonder whether the court could give a formal indication that it is appropriate for the Immigration solicitors to be represented at the hearing on the 29th inst., which we would envisage, would be sufficient to remedy the position with the LSC."

21. On 27 October 2004 my Clerk sent the following e-mail message to Mr Reed:

"The judge has read your e-mail message sent to me on 25 October 2004 and understands from our subsequent conversation that, although proceedings have not yet been issued in the Administrative Court, Miss Ganning intends to do so today.

As the order the judge made on 15 October 2004 in MB04P01677 makes clear, it is important that these new Administrative Court proceedings are listed before him at Newcastle on 29 October 2004 to be heard by him together with MB04P01677. He does not imagine that there will be any objection to this from the Treasury Solicitor, for the Secretary of State is, of course, anxious that all the proceedings in relation to the Anton family should be concluded as soon as possible.

Therefore, as soon as the Administrative Court proceedings have been issued the judge will make an order in those proceedings in the following terms:

UPON READING (1) the papers lodged by the Claimant and (2) the order made by Mr Justice Munby on 15 October 2004 in proceedings in the Family Division MB04P01677

IT IS ORDERED by Mr Justice Munby that the Claimant's applications (1) for permission and (2) for urgent interim relief be adjourned for hearing (together with the proceedings MB04P01677) in court before Mr Justice Munby at Newcastle Upon Tyne on 29 October 2004

Will you please ensure that Miss Ganning brings both this letter and the order the judge made on 15 October 2004 to the attention of the Administrative Court Office at the time the new proceedings are issued. It is important that the Administrative Court proceedings are not sent off for consideration by another judge.

The judge anticipates that this letter and the order he proposes to make in the Administrative Court will suffice to remedy Miss Ganning's position with the LSC."

22. Later the same day (27 October 2004) an application for permission to apply for judicial review was filed in the Administrative Court on behalf of all six members of the Anton family seeking to challenge the lawfulness of the Removal Directions given on 25 October 2004. I made an order in the judicial review proceedings in the terms already indicated. Also on the same day the father and the mother swore affidavits in the family proceedings.

23. Both sets of proceedings came on for hearing before me at Newcastle-Upon-Tyne on 29 October 2004. In the family proceedings Mrs Bollen was represented by Mrs Sally Bradley QC and Miss Gillian Matthews, the father and the mother by Mr Giles Pinkney, Robinson by Mr Justin Gray, the children's guardian, Mr Smith, by Mr xxx McDermott, and the Secretary of State by Mr Parishil Patel. In the judicial review proceedings the family was represented by Mr Jonathan French and the Secretary of State by Mr Patel. I heard argument and reserved judgment, making orders in the judicial review proceedings restraining the Secretary of State from removing any of the family until after I had delivered judgment. I now (23 November 2004) formally hand down - deliver - the judgment which I previously sent to the parties in draft on 1 November 2004.

The role of Mrs Bollen

24. It will be convenient at this point to explain Mrs Bollen's involvement with the Anton family and to explain also why only Robinson is the subject of the family proceedings and not his younger sibling Ramiya as well. (His two older siblings, Ramila and Raminsan have, of course, both now reached the age of 18 and are therefore no longer amenable either to the wardship jurisdiction or to proceedings under Part II of the Children Act 1989.)

25. Mrs Bollen is the divorced mother of two children: Kieran (born on 31 October 1988) and Caitlin (born on 20 January 1996). She lives on Teeside and Kieran goes to the same school as Robinson has attended since shortly after arriving in this country in 2000. According to Mrs Bollen, they quickly became firm friends and Robinson began 'staying over' with Kieran. By some time in 2001, she says, Robinson was spending the majority of his time at her home, sleeping there almost every night. She says "Robinson has been part of my family and treated as part of my family for over three years."

26. Robinson's father, in his evidence, describes how the two families have become very good friends - "the bond between both families has been strong. We obviously trust each other" - and how Kieran, who has stayed on occasions with the Antons, is "thought of as a family member". Describing what Robinson and Kieran do together he adds "As they don't have many friends, they rely on each other and have a close bond." He concludes:

"Robinson wishes to stay living with the Bollens. We accept he is well looked after by the Bollens and that he is happy living with them [and,] although we are sad, we respect his wishes."

In his most recent affidavit he says:

"There is no perfect solution to my wife and me. If we are allowed to stay in England we will see little of Robinson. If Robinson stays and we are returned to Sri Lanka, we will see nothing of him."

27. Mrs Bollen says that, following the Notice of Removal Directions given on 5 August 2004, she spoke to Robinson's mother

"who stated that they could not care for Robinson and his brother when they returned to Sri Lanka and they would have to fend for themselves. I explained to her that I would be happy to go on caring for Robinson, and she confirmed that this is what she would like to happen."

28. Thus the evidence - and there is not very much more to it - in the family proceedings. It is supplemented by what is said in the Form N461 filed in the judicial review proceedings. It is said that Mrs Bollen began to exercise parental responsibilities for Robinson, that he saw himself as having two mothers and called Mrs Bollen "Mom", and that:

"Mr and Mrs Anton have for a long time ceased to perform the essential functions of parents. The welfare of Robinson demands that the role of parenthood be carried out by others. The circumstances of the evolution of his attachment to the Bollen family suggest strongly that the role of parenting has for a long time fallen upon Mrs Bollen. If not Mrs Bollen, there is no-one who is capable and willing to make meaningful and informed parental decisions on behalf of Robinson. In effect he has been Kieran's brother for approximately three years, and treated as such by the Bollen family ... It would seem then that by degrees the real role of parenthood has as the years have gone by, legitimately shifted from [Mr and Mrs Anton] to Kieran's family."

29. In the statement of her case prepared for Mrs Bollen by her counsel it is also said that she has accepted full financial responsibility for Robinson and would wish to continue to do so. On the other hand, it appears from Mr Smith's report that Robinson has been staying with his own family at weekends and has been doing so for some time.

The law

30. The relevant legal principles are not in doubt. They are to be found in Hoffmann LJ's judgment in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 and my judgment in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921. I need not go through it all again. I merely repeat what I said in Re A at para [53]:

"(i) The functions of the court under the Children Act 1989 and of the Secretary of State under the Immigration Act 1971 and related legislation are, by and large, separate and distinct. The court and the Secretary of State are performing different functions.

(ii) The court when exercising its powers under the Children Act 1989 is not entitled to have regard to immigration policy. It must be guided by the interests of the child.

(iii) The court when exercising its powers under the Children Act 1989 necessarily has to apply a different test from the test that the Secretary of State applies:

(a) So far as concerns the Secretary of State the child's interests are not paramount. There is a balancing exercise in which the scales start even.

(b) In contrast (and assuming that the threshold is established in those cases where there is a threshold to be met) the court has to apply the principle that the child's welfare is the paramount consideration.

(iv) Where the proceedings under the Children Act 1989 relate to a child who is liable to removal or deportation the jurisdiction should be exercised very sparingly.

(v) 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. Indeed, the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process."

31. I added at para [71]:

"The court must be alert to the possibility in cases such as this that the local authority and the court are being used by desperate parents for ulterior purposes. Just as every asylum case demands anxious scrutiny, so does every care case. But the court must be alert that it does not allow itself to become complicit in the abuse of its own process by failed asylum seekers who may see in the processes of family law a solution to their problems not available to them within the immigration system or in the Administrative Court."

Re A concerned public law proceedings under Part IV of the Children Act 1989, but the same, of course, applies to wardship proceedings or private law proceedings under Part II.

32. But in the light of the turn the family proceedings took before Bodey J there is one matter I need to emphasise. It is the point I made in Re A at para [48]:

"exactly the same fundamental principles apply whether the court is exercising its private law powers under Part II of the Children Act 1989, its public law powers under Part IV of the Children Act 1989, the wardship jurisdiction, or its inherent jurisdiction in relation to children recognised and to an extent regulated by s 100 of the Children Act 1989."

I went on to explain what I had in mind:

"Proceedings under the Adoption Act 1976 apart, whatever jurisdiction he may be exercising a judge of the Family Division can no more than a judge of the county court or a family proceedings court make an order which has the effect of depriving the Secretary of State of his power to remove a child or any other party to the proceedings."

33. Let me repeat. A judge of the Family Division cannot in the exercise of his family jurisdiction grant an injunction to restrain the Secretary of State removing from the jurisdiction a child who is subject to immigration control - even if the child is a ward of court. The wardship judge cannot restrain the exercise by the Secretary of State for the Home Department of his power to remove or deport a child who is subject to immigration control any more than the wardship judge can prevent the Secretary of State for Defence sending a 17-year old soldier to Iraq (see Re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182), or prevent the Secretary of State for the Home Department sending a convicted 17-year old to a particular Young Offender Institution (see R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484, at para [146]), or prevent the same Secretary of State separating a baby from the convicted mother with whom the baby is living in a prison mother and baby unit (see CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517, and London Borough of Islington v TM [2004] EWHC 2050 (Fam)).

34. This does not mean that the family court cannot make a residence order in respect of a child who is subject to immigration control or cannot make such a child a ward of court. Nor does it mean that the family court cannot make a care order in respect of such a child. What it does mean, however, and this is the important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that the child is a ward of court, can limit or confine the exercise by the Secretary of State of his powers in relation to a child who is subject to immigration control.

35. In a sense one needs look no further than the classic statement of Russell LJ in the passages in his judgment in In re Mohamed Arif (An Infant) [1968] Ch 643 at pp 662-663 which I set out in Re A at para [44]. I forebear to quote the full passage again and confine myself to what Russell LJ said at p 662:

"any lawful deportation order affecting a ward must be outside the normal position which I have mentioned already, that a ward must not leave the jurisdiction without permission of the judge; indeed, it would override any existing express order of the judge in the wardship proceedings that the infant was not to depart from the jurisdiction ... 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 of 1962."

As Hoffmann LJ pithily observed in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 at p 299:

"removal in the face of an actual [wardship] order would not be a contempt of court".

36. However, as I pointed out in Re A at para [42], this is merely an application of the fundamental principle explained by Lord Scarman in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 at p 797 when, referring to A v Liverpool City Council [1982] AC 363, he said:

"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seised of the same matter, would act judicially. If Parliament in an area of concern defined by statute ... prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."

37. The rule in A v Liverpool City Council does not of course mean that the court is powerless to act. Lord Scarman was not of course disputing the High Court's power of judicial review under RSC Order 53 (now CPR Part 54) when exercised by what is now the Administrative Court. He was disputing the High Court's powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said at p 795:

"The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application ... of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53".

38. So if it is sought to obtain a judicial restraint of the exercise by the Secretary of State of his statutory powers in relation to a child, the matter is one for the Administrative Court, not the Family Division. This is because the issue is one of public law, rather than private law. (I use these phrases in the sense in which they will be familiar to practitioners in the Administrative Court rather than in the sense in which family lawyers distinguish between private law proceedings under Part II of the 1989 Act and public law proceedings under Part IV: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [34] and [60]).

39. The situation in the present case is exactly analogous to the situation which I recently had to consider in London Borough of Islington v TM [2004] EWHC 2050 (Fam), where I was invited to make a care order in relation to a baby who was living with her mother, a convicted drug smuggler, in a prison mother and baby unit. I made a care order, and approved a care plan for the baby prepared by the local authority which, in common with the care plan for the baby prepared by the Prison Service, provided for the baby to remain with the mother in prison until she was 18 months old. But I emphasised (see paras [17], [19]) that nothing I was doing could bind the Secretary of State:

"The fact is that in this unusual situation - that is where a child who is subject to care proceedings is in a prison establishment with his or her mother - neither this court nor the local authority is the sole or primary decision maker ... [I]t is for the Secretary of State alone and not for this court to decide whether or not a baby should be allowed to remain in prison with his or her mother. The only role of the High Court in relation to that aspect of the matter is a public law reviewing function exercisable either by the Administrative Court, by way of judicial review, or by either the Administrative Court or this court by way of an application pursuant to the Human Rights Act 1998. It is not a matter which is before this court exercising the only jurisdiction which I am currently exercising, namely jurisdiction under Part IV of the Children Act 1989.

... I mention those matters so that there should be no misunderstanding by anyone as to the effect of the order I am making today. What I am doing today - and all that I am doing today - is to make a care order pursuant to Part IV of the Children Act 1989 and, as part of that process, endorsing and approving the care plan promoted by the London Borough of Islington. I am not concerned today either to approve or to disapprove the care plan which has emerged as part of the Prison Service's decision making, although if this assists the Prison Service and the Secretary of State I can say that the plan seems to me to accord entirely with the best interests of the child. More specifically, it must be understood that nothing I have said today and nothing in the order I make can in any way fetter the power of the Secretary of State, if circumstances arise which justify such a decision, to decide that mother and baby should be separated before the baby has reached the age of 18 months."

40. I add, lest it be thought that I have overlooked the possible impact of the Human Rights Act 1998, a reference to the point I made in CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam), [2004] 2 FLR 517, at para [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."

41. In the present case Mrs Bollen, in the affidavit she swore on 10 August 2004, invited the court to make Robinson a ward of court and sought an order that he not be removed from the jurisdiction of the court. A judge exercising the inherent jurisdiction of the High Court in relation to children could properly make Robinson a ward of court, but he could not properly make the further order sought - at least not against the Secretary of State. That order, if it was to be granted at all, was properly a matter for the Administrative Court in the exercise, if appropriate, of its jurisdiction over the Secretary of State by way of judicial review.

42. This does not, of course, mean that what has gone on in a family court is simply irrelevant to the exercise by the Secretary of State of his powers or that he can simply ignore what the family court judge has said. For as Hoffmann LJ said in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 at p 297:

"Clearly, any order made or views expressed by the court would be a matter to be taken into account by the Secretary of State in the exercise of his powers. If he simply paid no attention to such an order, he would run the risk of his decision being reviewed on the ground that he had failed to take all relevant matters into consideration."

But as he went on to say at p 298:

"The court and the Secretary of State are performing different functions. It does not follow that because the court, applying its criteria of the welfare of the child, refuses to dismiss the application, the Secretary of State should not exercise his powers of deportation or removal. He may therefore take the view that whatever the court may decide about the welfare of the child, policy requires removal or deportation. Provided that such a decision is not irrational or procedurally irregular, the court cannot declare it unlawful."

43. And at p 300 he added this:

"No doubt a wish to litigate in an English court would in many cases be a proper ground for an application to the Home Office for leave to enter or remain. One can imagine cases in which it would be irrational to refuse leave to someone who applied on such a ground. But the Secretary of State is entitled to exercise his discretion on the facts of each case. The issue of a writ is not an automatic passport to this country."

The family proceedings

44. The Secretary of State's position is set out with great clarity by Mr Patel in his position statement:

"But for the current proceedings, it is apparent that action would have been taken to remove the family. It is the Secretary of State's intention to remove the whole family (including Robinson) to Sri Lanka shortly. The Secretary of State would have regard to the proceedings but these proceedings would not bind the Secretary of State or prevent him arranging for the removal of the Anton family to Sri Lanka. In taking immigration decisions the interests of Robinson are one factor for the Secretary of State to consider, but they are not the paramount consideration ...

The Secretary of State does not propose to make detailed submissions. However, having considered the available material, it is the Secretary of State's clear view that the court is - impermissibly - being invited to allow itself to be used as a means of influencing the immigration process. These proceedings have been issued to frustrate the removal of the Anton family:

(1) the proceedings were not issued until after the Secretary of State informed the Anton family that he intended to remove them;

(2) there is no genuine dispute as to whether Robinson can be cared for properly by his mother and father. A bare assertion is made that they could not care for Robinson and his brother when they returned to Sri Lanka. Yet no proceedings have been issued in respect of the brother, Ramiya;

(3) in any event, such a dispute would involve an impermissible comparison of the relative benefits of the UK and Sri Lanka."

That last submission is a reference back, as it were, to my observation in Re A at para [60] that:

"It is no part of the court's function in a case such as this to carry out a comparative analysis of conditions in this country and in Country X with a view to deciding which country might be thought preferable as a place for the children to be living."

45. Mrs Bradley, on behalf of Mrs Bollen, takes issue with Mr Patel's characterisation of the family proceedings. Put shortly, she submits that the proceedings are not a device to prevent or frustrate removal; there was within the Bollen family what she calls a "gradual awareness of the need to regulate Robinson's position"; if urgency dictated the issue of the originating summons, that was only the catalyst, for Mrs Bollen could have sought leave to apply for a section 8 order, or indeed applied to make Robinson a ward of court, at any stage within the last three years; independently of any consideration about the risks to which he would be exposed if removed to Sri Lanka, Robinson's welfare demands that his place in the Bollen household and his relations with the wider Bollen family be secured; and if the court were invited to conclude where Robinson's best interests lay in a choice between staying with the Bollen family or being compelled to live with the Anton family whether in the United Kingdom or elsewhere the answer, she says, would be clear. She emphasises that when exercising jurisdiction either in wardship or under Part II of the 1989 Act I must apply the paramountcy principle when considering Robinson's welfare. She invites me not to dispose of the proceedings summarily but to give directions for an early trial.

46. Mr Pinkney, on behalf of Mr and Mrs Anton, joins with Mrs Bradley in submitting that the proceedings are not an improper attempt to influence the immigration process. He submits that there is a genuine issue concerning Robinson's welfare, at the root of which lie questions of residence, contact and parental responsibility, and that the relationship between Robinson and the Bollens is one which genuinely gives rise to these proceedings. He points out that the parents have not sought to place their three other children in artificial domestic relationships so as to try and frustrate their removal and that the circumstances which gave rise to these proceedings existed before the Removal Directions were given on 5 August 2004. He submits that the Bollens were not chosen as Robinson's carers; events carried him in their direction. He suggests that if, instead of being informed on 5 August 2004 that they were being removed to Sri Lanka, the Anton family had been told they could reside in the United Kingdom and had consequently moved to Cornwall, the proceedings would still have been commenced. For Robinson would still have wished to live with the Bollen family and the issue of where he is to live and who is to be responsible for him would have remained - and that issue, he says, might potentially have been highly contentious if Mr and Mrs Anton, having got themselves established in this country, had then sought to regain their child from Mrs Bollen. But he tells me that, although they did not invite or encourage these proceedings, Mr and Mrs Anton do not oppose them.

47. Robinson is separately represented and supports Mrs Bollen's application. Mr Gray on his behalf in substance adopts Mrs Bradley's submissions. Mr Smith, Robinson's guardian, in effect adopts a position of benevolent neutrality.

48. In response, Mr Patel submits that the only reasonable inference is that the purpose of the proceedings is indeed to frustrate Robinson's removal. He asked rhetorically, ' But for the Removal Directions given on 5 August 2004, would the proceedings have been commenced?' and submits that the answer is obvious. He says that Mrs Bollen must have known for quite some time that there was a very real question about Robinson's right to remain indefinitely in this country; yet she took no steps until 10 August 2004 to regularise his position in her household.

49. Those are matters of inference. But, Mr Patel says, there is much both in the evidence and more particularly in Mr Smith's report to suggest that matters are nothing like as simple and straight-forward as Mrs Bradley would have it. He suggests that the picture painted both in Mr Anton's evidence and in Mr Smith's report is of a relationship between the two families more complex and more 'two-way' than Mrs Bollen would have us accept: Robinson and Kieran used to sleep over at each other's houses and Kieran was part of the Anton household just as Robinson was part of the Bollen household. He points to Mr Smith's account of what Robinson told him when they met on 15 September 2004: of the answers he gave when asked why he did not want to return to Sri Lanka (which, Mr Patel says, seemed to relate more to Robinson's difficulties with his own family and with life in Sri Lanka rather than his relationship with the Bollens); of how he stressed that he is very close to his family and frequently visits them; and of how, at one time, Mrs Bollen had been going to adopt him (and how Mrs Bollen's sister, Angela, had been going to adopt Raminsan), but that this

"had not been pursued, as it seemed that the Home Office was not taking any further action in removing them from England. When the Home Office made the recent decision to deport the family, it was too late for Angela to issue any proceedings in respect of Raminsan because he was now over 18 and too old to be adopted. However, Mrs Bollen immediately went to Court and got an order that he, Robinson, could not be removed. He said this was done to try and help him to be able to stay in England ... Again he said the reason why his mother and father were happy for a residence application to be made, and had it been possible for an adoption application to have been made in respect of his brother, was because they wanted what they felt was best for their children. He also said that Mrs Bollen and her sister, Angela, had considered adoption as a means of allowing the boys to remain in England. They had done it because they liked them both very much and also wanted to help the family."

50. In this connection Mr Patel suggests that Mrs Bollen's account of her conversation with Mrs Anton in August 2004 is indicative more of a willingness on her part to look after Robinson because his parents would not be able to cope if he returned with them to Sri Lanka than of a spontaneous wish to do so because of the relationship she had built up with him over the previous three years.

51. Not surprisingly Mr Patel fastens upon the phrase "genuine dispute", used both by Hoffmann LJ in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 at p 296 and by me in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921, at para [53], as determinative of the family proceedings. He says that there is not, and never has been, any "dispute" between Mrs Bollen and any member of the Anton family. Mrs Bradley counters with the observation that even if (which she does not accept) there is no "dispute", there is certainly an "issue" that requires to be resolved, namely whether Robinson stays with the Bollen family or with the Anton family and, in any event, questions of contact. She cautions me against too ready an acceptance of what Robinson had apparently said to Mr Smith: even now he is not yet 16 years old and he may have 'got the wrong end of the stick'.

52. In view of the conclusion I have arrived at, the less I say about the merits of these competing arguments the better. I do not think that the case is anything like as simple and straight-forward as Mrs Bradley would like me to believe. I quite take the point that, judged from one perspective, it might be said that the family proceedings are simply a rather delayed attempt - albeit triggered by the Removal Directions given on 5 August 2004 - to regularise and give formal legal recognition to a state of affairs which, seemingly, has existed for some years. And I readily accept that there is lacking from the present case the "extreme artificiality" which, as I commented (see paragraph [68]), was such a striking feature of the proceedings in re A. On the other hand, the factual position, as Mr Patel suggests, may not be quite so simple, and Mr Smith's report, taken at face value, suggests that the possible use of family proceedings "as a means of allowing the boys to remain in England" and "to help the family" - in plain English, to frustrate the removal process - has been part of Mrs Bollen's thinking for quite some time. I also feel bound to say that I find the evidence filed in support of the family proceedings rather 'thin'. I quite understand why Mrs Bollen's affidavit was very short: there was an urgent imperative to file evidence at very short notice. But I find it somewhat surprising, not least in the light of some of the things that are said in Mr Smith's report, that nothing has yet been done to supplement her evidence, despite what might be though the fairly clear implications of the order I made on 15 October 2004.

53. However I have concluded, after anxious consideration, that it would simply not be right to make an order summarily disposing of the family proceedings at this stage.

54. In Re A itself I treated the relevant question as being (see at paras [52] and [54]) "whether there is some 'solid advantage' to the children in continuing the proceedings", using those words in the sense in which they had earlier been used by Waite LJ in London Borough of Southwark v B [1993] 2 FLR 559 at p 573. In the present case there is, I think, solid advantage to Robinson in the proceedings being allowed to go to trial. Not, I stress, the advantage which he may thereby derive of a further postponement of his removal from the United Kingdom - though that, of course, is a matter for the Secretary of State - but rather the advantage of a proper judicial investigation of what I am persuaded are the real issues which potentially arise as between Mrs Bollen and Mr and Mrs Anton.

55. In my judgment it is in Robinson's best interests that the family proceedings should move forward to a full hearing. Summary disposal would not be in his best interests. It is in his best interests that the issue of whether it is in his best interests to live with the Bollens or with his own family should be investigated and adjudicated upon by the court. But his best interests equally demand that the full hearing should take place as soon as possible. This is not just because all delay in such cases is undesirable, though plainly it is. It is because in this particular case, and for reasons which are too obvious to require elaboration, the uncertainties for Robinson and those caring for him that any further delay will necessarily engender are likely to be very damaging to him. It is very much in Robinson's best interests that he is told as soon as possible what his future is to be, whether it turns out to be with the Bollens or with his own family.

56. I shall therefore give directions with a view to the earliest practicable hearing of the family proceedings. It is not possible to have a hearing within days. But if the inevitable further period of delay cannot be measured only in days it must at least, if at all possible, be measured in weeks rather than months.

57. I shall invite counsel to agree appropriate directions.

The judicial review proceedings

58. The judicial review proceedings, as I have said, seek to challenge the lawfulness of the Removal Directions given on 25 October 2004. (I note in passing that no such challenge was ever made to any of the earlier Removal Directions nor, indeed, to any of the various other decisions that the Secretary of State has made since the final decision of the Immigration Appeal Tribunal on 18 December 2003.) The challenge proceeds on two distinct grounds:

i) First, it is said on behalf of the entire Anton family that it was unlawful to give Removal Directions on 25 October 2004 when the Secretary of State had not yet responded to the further representations made by Miss Ganning in her letter to the Home Office dated 8 October 2004.

ii) Secondly, it is said on behalf of Robinson that, in giving the Removal Directions in relation to him, the Secretary of State has failed to give proper effect to his own policy regarding children who are the subject of pending proceedings either in wardship or under the Children Act 1989. This part of the case is put in two ways. It is said that the Removal Directions have been issued without proper regard being given by the Secretary of State to:

a) the policy set out in DP2/93 - Home Office Instructions on Cases Involving Marriage and Children; and

b) the policy as explained to me in Re A by counsel who appeared in that case on behalf of the Secretary of State.

59. Mr Patel told me that the guidance in DP2/93 has since been replaced, although without any change of substance, by DP4/96. The passages relied on by Mr French are in paragraphs 11-13, now paragraphs 9-11 of DP4/96. They read as follows:

"9 This part of the instruction provides guidance on handling cases where there is reason to believe that the purpose of adoption, custodianship, wardship or residence order proceedings is to frustrate enforcement action.

10 ... Children who are wards of court should not be removed from the United Kingdom without the court's leave ...

11 ... Where ... it is clear that the court proceedings are designed purely to enable the child or the parent to evade immigration control consideration may be given to instructing the Treasury Solicitor with a view to intervening in the proceedings. There must be evidence, not just a suspicion, that there has been a serious attempt to circumvent the immigration control ... [original emphasis]."

60. The other limb of the case put on behalf of Robinson is based on my statement in Re A (see paragraphs [35] and [70]) that:

"the Secretary of State's usual practice is to refrain from taking any enforcement action against the relevant parties pending the outcome of the family proceedings."

That is what I was told in that case by counsel appearing on that occasion for the Secretary of State. Mr Patel does not seek in any way to disavow that statement, but he tells me on instructions that the policy applies only to care cases - and Re A was such a case - and not to wardship or other private law cases. This, he explained, is because care cases, necessarily commenced by local authorities and involving disputes as to whether the parents can properly be left to look after their children, of their very nature give rise to factual issues which normally require to be resolved before the Secretary of State can himself come to any decision. So the case put on behalf of Robinson would seem to stand or fall on the Home Office Instructions and nothing else.

61. So far as concerns the claim based on the unanswered letter of 8 October 2004, Mr Patel indicated that, whatever might be the strict legal position, the Secretary of State was prepared to agree not to remove any of the family until after he had responded to their representations and given them a further short period thereafter - Mr Patel suggested three days - to take such further proceedings as they might wish to challenge his decision. The effect of that, of course, is to render this part of the judicial review proceedings academic, for they have in practical terms achieved all that was possible. Mr French agreed that in these circumstances I should adjourn the application for permission. If the Secretary of State accepts the latest representations the judicial review proceedings will become otiose. If, on the other hand, the Secretary of State rejects them, then Mr French may wish to amend the proceedings to mount a challenge to the Secretary of State's new decision.

62. So far as concerns the separate claim mounted on behalf of Robinson, this is of course in part dependent upon the outcome of the family proceedings. Since it presupposes the continued existence of the family proceedings it would have become academic had I dismissed those proceedings. As it is, the family proceedings remain on foot, so it will be necessary to consider this part of the judicial review proceedings also. Sensibly, in the circumstances, Mr French and Mr Patel agreed that I should adjourn the application for permission on this part of the claim as well.

63. I shall invite counsel to agree appropriate directions for the future conduct of the judicial review proceedings. It is obviously important that they are dealt with as soon as possible. In particular the Secretary of State is entitled to know as soon as possible whether or not there is any part of the judicial review proceedings which has sufficient arguable merit to justify the grant of permission. This, I emphasise, is a matter to be decided if at all possible within days, not weeks.

Interim relief

64. Mr Patel submits that the injunction granted by Bodey J on 23 September 2004 was wrong in principle and that I should therefore discharge it. As a matter of principle this must be right, for, as I have already said, if the Secretary of State is to be restrained by the court it must be by the Administrative Court, exercising its public law powers, and not by a judge exercising only a family jurisdiction, whether in wardship or under the 1989 Act.

65. Bodey J, albeit assigned to the Family Division, is one of the Justices of the High Court, and as such is entitled to exercise all the jurisdiction of the High Court, irrespective of the Division to which any particular kind of case is customarily assigned: see sections 4(3) and 5(5) of the Supreme Court Act 1981. He could therefore have exercised the jurisdiction of the Administrative Court if he had thought fit to do so. (Normally, of course, it is desirable that such jurisdiction should be exercised only by those judges of the High Court, whichever Division they are assigned to, who are also nominated judges of the Administrative Court. However there will be occasions, particularly in cases of great urgency, where needs must, and where the jurisdiction can appropriately be exercised by any judge of the High Court.) But that is not, as I understand it, what Bodey J actually did. For, as his order makes clear, it was in apparent exercise of the wardship jurisdiction that he made the order restraining the Secretary of State.

66. I am not at all surprised that Bodey J granted an injunction. Had I been in his place I would have done so as well. The only difference is that if I had been given time for reflection, as Bodey J (dealing with an urgent telephone application) was not, I would have granted the injunction in exercise of my powers as a nominated judge of the Administrative Court (and upon an undertaking to issue proceedings in that court for judicial review as soon as possible) and not in exercise of my powers in wardship.

67. In the circumstances I think the right thing to do is to discharge the relevant parts not merely of Bodey J's order but also of the earlier order made by District Judge Hall, though replacing them, if appropriate, with corresponding orders in the judicial review proceedings. I shall therefore discharge paragraph 2 of the District Judge's order of 10 August 2004 and paragraph 1 of Bodey J's order.

68. The question remains whether I should grant any similar relief in the judicial review proceedings. As I have already said, at the conclusion of the hearing on 29 October 2004 I made orders in the judicial review proceedings restraining the Secretary of State from removing any of the family until after I had delivered judgment. (For the avoidance of doubt I emphasise that those orders, unless discharged on application made to me by the Secretary of State in the meantime, will remain in force until this judgment is formally handed down: "delivery" in this context and for this purpose refers to the formal handing down of the final approved judgment and not the earlier sending to the parties of the judgment in draft.) The question is whether I should extend those orders any further.

69. Having carefully considered this question whilst preparing this judgment, I think that in all the circumstances the fair and just course is for me to extend these injunctive orders until after the hearing of the adjourned application for permission in the judicial review proceedings. Subject, therefore to any further submissions that Mr Patel may wish to address to me in the meantime, I will, when handing this judgment down formally, grant further injunctions in the same terms as those I granted on 29 October 2004, but expressed as continuing until delivery of judgment on the application for permission. Subject to any further submissions that Mr French may wish to make I will, however, give the Secretary of State liberty to apply to me to vary or discharge the injunctions on 24 hours notice.

Postscript - the events of 22 September 2004

70. The events of 22 September 2004 are described in some detail by Mr Reed in his statement dated 27 September 2004 and by Ms Nasser in a statement dated 4 November 2004. The precise sequence of events is still not absolutely clear, but I do not think it matters. The key facts, which Ms Nasser frankly admits, are that at the time when she was discussing with Mr Reed on 22 September 2004 the vacation of the hearing fixed before Bodey J on 23 September 2004 she knew that Removal Directions had been set for 29 September 2004 but deliberately did not communicate that information to Mr Reed, nor indeed to Miss Ganning when she spoke to her later the same day.

71. The information had been communicated to Ms Nasser by the IND on 17 September 2004, on which occasion she was "specifically requested ... not to inform the solicitors for the parties at this stage." She was told that "this was because of the standard procedure adopted by the IND", which she understands is that "when Removal Directions are set for a family, the family are first paid a visit by Immigration Officers, who take time to explain the removal procedure to the family. The Immigration Officers are also given an opportunity to assess and take into account all the issues and circumstances of the family, eg if a member of the family is disabled then their special needs would need to be catered for in the removal process." She was also told by the IND that as soon as the Anton family had been served with the notices and had received a visit from the Immigration Officers, their solicitors "could" [sic] be informed.

72. Ms Nasser accepts that during her conversation with Mr Reed on 22 September 2004 he wished to know what the Secretary of State's position was. Her response was to the effect that "any orders made in the family proceedings would not prevent removal of the family and I informed him that the IND was seeking to remove the family shortly." But she accepts that "I was not able to divulge to Mr Reed or Ms Ganning at that stage that Removal Directions had been set. I had been asked by [the IND] not to do so".

73. Ms Nasser seeks to extenuate matters by stating (no doubt correctly) that it is only when Notice of Removal Directions is given that removal can take place, so that before service of the Notice the Removal Directions have no legal or administrative effect, by telling me (which I of course accept) that at the time she spoke to Mr Reed and Miss Ganning on 22 September 2004 she was not aware that Notice of the Removal Directions had already been served, and by asserting that "Given my comments to him and the Secretary of State's position, Mr Reed would have been aware that removal would not be delayed by reason of family proceedings. I did not state nor did I imply that removal would be delayed until any hearing."

74. All that may be so, but the simple fact is that if Mr Reed had been aware on 22 September 2004 of the fact that Removal Directions had been set for 29 September 2004 he would clearly never have allowed the hearing before Bodey J on 23 September 2004 to be vacated. That is obvious, not least from the fact that once he learned the true facts he made an urgent application for injunctive relief. Indeed, and as Mr Reed himself says in his statement, "Had I, or indeed any of the other parties to the application been made aware of the intentions with regard to the family, we would have insisted upon the hearing before [Bodey J] proceeding on the 23 ^rd September 2004."

75. I do not blame Ms Nasser, for she was fettered by her client's instructions. But I have to say that I find the attitude of the IND - for which the Secretary of State is of course responsible - extremely disquieting. The attitude of the Home Office in this case is all too reminiscent of the behaviour for which it was criticised by the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003]UKHL 36, [2004] 1 AC 604.

76. I express no concluded views about the general policy of the IND as described by Ms Nasser, a matter which is not before me. I am content to assume for present purposes that it is an entirely proper and indeed appropriate policy. But its application in the particular circumstances which were presented in this case on 22 September 2004 is a very different matter. The fact that Removal Directions had been set for 29 September 2004 should have been disclosed by the IND as soon as it became apparent that the question of adjourning the proceedings from 23 September 2004 until 1 November 2004 was under consideration.

77. This has nothing to do with any forensic obligation to make disclosure for the purpose of the pending family proceedings - proceedings to which, of course, the Secretary of State was not formally a party. It has everything to do, however, with fairness as a fundamental principle of public law. As Lord Steyn pointed out in R (Anufrijeva) v Secretary of State for the Home Department [2003]UKHL 36, [2004] 1 AC 604, at para [30]:

"In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law."

It was simply not fair of the IND to allow the family proceedings due to be heard on 23 September 2004 to be adjourned without informing the parties that Removal Directions had been set for 29 September 2004. It was unfair because it must have been obvious that with knowledge of the true facts Mr Reed would never have allowed the hearing to be adjourned.

78. Referring to what had been revealed of Home Office practice in that case, Lord Steyn commented in Anufrijeva at para [24] that:

"It provides a peep into contemporary standards of public administration. Transparency is not its hallmark. It is not an encouraging picture."

The same, I regret to have to say, applies in the present case.