England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/07/2005

Sir Mark Potter, P :

1. The child the subject of these proceedings is a baby girl born on 5 January 2005 who became a Ward of Court on 13 April 2005 on the application of the plaintiff father when he feared her imminent removal to Jamaica by the defendant mother's own mother ("the grandmother") in order to live there with her. The mother and grandmother are Jamaican citizens, whereas the father is a citizen of the United Kingdom. The father had been informed by the mother on 9 April 2005 that she planned to send the child to Jamaica with the grandmother, the mother proposing to remain in the UK at that time. Tickets for the child and the grandmother had been booked for a flight on 14 April, the day after the father's application to the court.
2. Although a Ward of Court, the child is not a UK citizen. As the father is not married to the mother, the immigration status and nationality of the child is that of the mother only. S.1 of the British Nationality Act 1981 provides that a child born in the UK acquires British Nationality if one of the parents is a British national. However the word "parent" is defined in section 59 (as the mother and the husband of the mother). Although this has been amended by section 9(1) of the National Immigration and Asylum Act 2002, which provides for the recognition of unmarried fathers to be determined under Regulations to be set before Parliament by the Secretary of State, to date no such Regulations have been set before Parliament, the 1981 Act remains unamended and the child is thus Jamaican by nationality.
3. As at the issue of proceedings, the position of the mother was that, having entered the UK upon a visitor's visa, which expired in 2002, she had since been living under the shadow of deportation from the United Kingdom but without the Home Office having made any move to deport her. The parties' position and the history of the matter till that date is as follows.
4. The parties' families are known to each other in Jamaica. However, the mother and father met in England well after the expiry of the mother's visa. They started a relationship in January 2004, which lasted for about a year, finishing on or about the date that the child's birth was registered. They never lived together but saw each other on a regular basis. He lived at home with his mother and she with her mother at her uncle's home.
5. After the child's birth their relationship deteriorated. Partly because of the necessity in February 2005 for the mother and grandmother to move to a different address and partly because, as the mother asserts, of interference by father's mother in the care of the child, relations were not easy. However, there was contact between the father and the child on weekdays after his attendance at college and at weekends.
6. In early April 2005, the mother told the father of her plan that the child should return to Jamaica with her grandmother, the mother following later. The father was unwilling that this should happen. There were arguments about the matter and whether or not the father was capable of making satisfactory arrangements for the child to be looked after by a combination of his mother, when he was out at college, and himself in the evenings when his mother worked. The mother then decided that she would go to Jamaica at once herself. She was unable to get a seat upon the flight already booked for her mother and child on 14 April, but she obtained a seat on a flight one week later.
7. Following the order made on 13 April 2005, the matter came before Hedley J on 19 April when he ordered that the case be listed for further directions on 3 May. There had already been an exchange of affidavits and he ordered the swearing of affidavits in reply. He also made an order for the father to have contact on 21 April 2005.
8. On the hearing for further directions before Bodey J on 3 May 2005 he ordered that the mother issue file and serve an application with statement in support for leave to remove the child from the jurisdiction to Jamaica; that the father file and serve all evidence in support including expert evidence from lawyers in Jamaica as to the practicalities and time frame of obtaining "mirror" contact orders in that jurisdiction by 24 May 2005; and that the father, if so advised, file and serve an application for a residence order together with evidence in support. He also ordered a report from a CAFCASS officer pursuant to s.7 of the Children Act 1989 on the issues of contact, residence and leave to remove by 19 July 2005. The judge also gave directions for a hearing on the issue of interim staying contact, ordering that meanwhile the mother made the child available for contact on each Tuesday and Friday commencing 6 May 2005 from 9:30am to 2:30pm. The final hearing of the issues as to residence and leave to remove was to take place, if possible, by 29 July 2005.
9. It was at the same time noted that, with the agreement of both parties, the father's solicitors would request Miss Maxine Brown, a teacher of Kingston Jamaica in whom both parties reposed confidence, to look into the parties' plans for the child in Jamaica and report to the court on those plans in writing by early July 2005.
10. The matter came before me on 26 May 2005 as the date fixed for hearing on the issue of interim staying contact on the basis of the second affidavit of the mother dated 29 April 2005 and the affidavit of the father dated 28 April 2005, in which he expressed a wish that, in the long term, the child should live with him on a permanent basis being looked after by himself and his mother, he, for the time being, giving up his place in college to support and care for the child out of his earnings as a postman or warehouse assistant, for which jobs he had made application. However, it was realistically acknowledged on his behalf at the hearing that he was not in a position to take over the mother's role as primary carer.
11. The mother's stated position was as follows:

"9. I do need to go back to Jamaica with [the child] as soon as possible. It is all right [for the father] to say that I should remain in this country, but I have no means of support here. He is not providing me with any money to financially support [the child] and I am not entitled to get any benefit whatsoever. I cannot continue living on people's charity and need to go home. It is not fair for [the child] and I to be forced to remain in this country with no means whatsoever of supporting ourselves. I am not able to work and not entitled to any benefits.

10. I understand [the child] does have dual nationality and may or may not be entitled to a British passport.

11. [The father] does not have any realistic proposals to care for [the child] in this country and I do not believe that it would be best for [the child] to remain here without me.

12. I therefore ask the court to determine this matter urgently as I am under a lot of stress at the moment; if I cannot return home to Jamaica soon [the child] and I could become homeless and destitute with no means of support."

12. Shortly before the hearing before me, a new and highly relevant development occurred. The mother was served with a deportation order addressed to herself and the child informing them that directions had been made for their removal from the United Kingdom by flight JM002 to Jamaica on 31 May 2005. It was stated not to be an appealable decision.
13. In the light of that notice, when the matter came before me, Mr Clough, who appeared on the mother's behalf, made clear her position that, because she wished in any event to return to Jamaica with the child, she did not wish or propose to challenge the notice of removal. He also drew my attention to the decision of the Court of Appeal in R v Secretary of State for the Home Department, exp T [1995] 1FLR 293 in which, following examination of a number of authorities, Hoffmann LJ stated:

"From these and other cases I think that the following propositions can be extracted.

1. The court may entertain an application to invoke its wardship jurisdiction or powers under the Children Act 1989 made by or in respect of a person liable to removal or deportation.

2. The jurisdiction will be exercised very sparingly because:

i. A wardship or Children Act order cannot 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, although it may be something to which the Secretary of State should have regard in deciding whether to exercise the power; and

ii. 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.

... Proposition (2) is stated in all the cases but the two reasons require further analysis. Reason (a) is contained in the judgment of Russell LJ in Re: Mohamed Arif [1968] Ch 643 at p662. In particular, after noting that a wardship order normally conferred upon the court the power to decide where the child should live and made its consent necessary to the removal of the child from the jurisdiction, so that unauthorised interference or removal constituted a contempt, Russell LJ pointed out that this could not apply in a case in which a statute expressly conferred the right to remove the child from the jurisdiction upon someone else. In relation to the powers of the Secretary of State under the immigration legislation, he said:

Any lawful deportation order affecting a ward must be outside the normal position 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."

It followed, said Russell LJ, that:

"The wardship of an infant, 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 infant from the jurisdiction..."

14. Later Hoffman LJ stated:

"...there is no legal necessity for the Secretary of State to intervene and have the application dismissed before he is able to exercise his immigration powers. There may well be cases where intervention would serve no purpose. 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 its 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."

15. Mr Clough submitted that, in the light of that authority, it was neither necessary nor appropriate for the court to do other than let things take their course in accordance with the removal notice with which the mother intended to comply.
16. Miss Harding who appeared for the father made clear that the father had only recently become aware of the service of the removal notice. Indeed, on 3 May 2005, on the last occasion the matter was before the court, although aware that the mother was potentially subject to a deportation notice, there had been no indication that it was imminent and the court had proceeded on the understanding that it would look at the question of interim contact on the basis that the parties were remaining in England and amenable to the jurisdiction. The father was sceptical of the timing of the notice; he was suspicious that the mother might have engineered the situation so as to frustrate the court proceedings. Miss Harding submitted that it was in the long term interests of the child to obtain a suspension of the notice to remove so that, by considering the position and obtaining an interim care order, the father would obtain formal recognition of his rights to contact, which could be reflected in a "mirror" order in Jamaica before the departure of mother and child. Indeed, such had been the purpose of the part of the order of 3 May 2005, which called upon the mother to serve expert evidence as to the practicalities of obtaining a mirror order.
17. In these circumstances, Miss Harding submitted to me that it would be appropriate for the court to request the Home Office to stay its hand and /or at short notice to instruct a representative to attend at court to show why there should not be a short temporary delay in the execution of the notice of removal pending further enquiry and an investigation of the matter by the court in accordance with the directions already given. Failing this, Miss Harding submitted that a contact order should be made at the hearing before me of which the Jamaican courts might take cognizance in relation to any future dispute.
18. It did not seem to me that the first course was either feasible or appropriate. To take that course would be to allow the court to be used as a means of influencing the Secretary of State. In any event, the expert evidence obtained by the defendant and contained in a report of Ms Carol Aina a qualified solicitor, former member of the Law Society Children Panel and an Attorney at Law in Jamaica, indicates that, in relation to orders for custody and rights of access to children to be made in Jamaica, such application requires to be made in the Jamaican courts and that, while the court in Jamaica will be mindful of the view of the English court, it deals with the matter de novo, the trial judge coming to a decision based on the evidence presented in Jamaica. Thus, quite apart from the position as stated in ex p. T as above set out, I was not receptive to Miss Harding's primary submission.
19. However, on careful reflection, and in the absence of any objections on the part of the mother, I propose to take the alternative course proposed by Miss Harding and I am prepared, in this window of time before the mother's departure, to make an interim order reflecting my view and that of the parties as to the appropriate contact on the information before me.
20. As at the time of the order before me, the provision for contact pursuant to paragraph 10 of the order of Bodey J dated 3 May 2005 was for contact on each Tuesday and Friday between 9:30am and 2:30pm. That was plainly a sensible arrangement, acceptable to the mother and a recognition that the father has not, by any aspect of his conduct, shown himself unsuited to having reasonable contact with the child. Indeed, he is closely interested in the child's welfare.
21. The mother made clear by her evidence, confirmed through her counsel that:

"I have no objection to [the father] having contact in Jamaica whenever he comes there on holiday. He has family in the country and he wants to visit once, twice or three times a year, I would allow him contact, including overnight staying contact, whilst he is in Jamaica. Clearly, by the time [the father] visits Jamaica it may be that [the child] will not know [him] and be comfortable, so initially he will have to spend sometime getting to know her before she will be able to stay with him overnight. Contact will have to be taken at [her] pace and if she was comfortable with him, more or less straight away he could have extended contact."

22. I hope that, as the mother has made clear before me, she will remain loyal to those assurances concerning her position, upon the faith of which both the father and this court have proceeded. It appears from the report of Ms Aina that the considerations applied by the courts of Jamaica to applications in respect of custody and access are similar to those prevailing in English courts. In particular, under s 18 of The Children (Guardianship and Custody) Act 1957 the welfare of the child is considered to be the first and paramount consideration and, under s.7 (1), the court has regard to "the welfare of the child, and to the conduct of the parents, and to the wishes as well of the mother as of the father..." On the basis of the evidence before me, there is nothing which in English law requires imposition of any restriction upon the father's right to reasonable contact and/or access, or upon application of the principle that it is in the long-term interest of the child for such contact and access to take place, so that the relationship of the child with both parents is encouraged to develop.
23. Accordingly, I shall make an order as follows in the form prepared by counsel and handed to the associate namely:

1. The wardship be discharged upon the child's removal from the jurisdiction pursuant to the Notice of Removal dated 16 May 2005.

2. The tipstaff do release the passport of the defendant mother to her on presentation of this order after 9:30am on Friday 27 May 2005.

3. The plaintiff father do have contact with the minor as follows:

i. On 27 May 2005 from 9:30am to 2:30pm;

ii. Reasonable contact, including staying contact, whenever the plaintiff father visits Jamaica and whenever the defendant mother is in the United Kingdom with the minor. The times and places for such contact to be arranged between the parties.

4. The defendant mother do notify the plaintiff father of any address at which she and the minor reside from time to time.

5. There be permission to the parties to disclose to a Family Court in Jamaica the judgment herein for the purpose of applying for a contact order by consent in similar terms to paragraph 3(ii) herein. Such application to be made within 12 months of this order.

6. There be no order for costs save for detailed public funding assessment of both parties' costs.