Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 91
P1192/11	OPINION OF MORAG WISE, Q.C. (Sitting as a Temporary Judge) in the Petition N.F.I.K.N Petitioner; for Judicial Review of the decision of the Secretary of State for the Home Department dated 21 September 2011 refusing to treat the petitioner's further submissions as a fresh claim. Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Winter; Drummond Miller

Respondent: Webster; Office of the Advocate General

30 May 2012

Introduction
[1] The petitioner arrived legally in the United Kingdom on 20 May 2009. She had a valid five year UK visitors visa, although that visa expired on 19 January 2010. She remained in the United Kingdom thereafter, becoming an illegal overstayer. She claimed asylum on 23 February 2010 which was refused on 16 March 2010. She appealed against that decision and a hearing was held on 14 April 2010. On 19 April 2010 the petitioner's appeal was dismissed on all grounds by the Immigration Judge. Permission to appeal to the Upper Tribunal was refused by a Senior Immigration Judge on 13 May 2010. The petitioner became appeals rights exhausted on 7 June 2010.

[2] In a letter dated 13 September 2011 the petitioner made further submissions to the respondent. On 21 September 2011 the respondent refused to treat those further submissions as a fresh claim. The petitioner now seeks reduction of that decision.

Rule 353
[3] The provisions setting out what amounts to a fresh claim in this context are set out in paragraph 353 of the Immigration Rule (HC395C). This provides that:-

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i.) had not already been considered; and

(ii.) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

The expression "a realistic prospect of success, notwithstanding its rejection" has been interpreted as imposing a modest test, requiring that the applicant shows only that he or she has more than a fanciful prospect of success - R(AK) (Sri Lanka) v Secretary of State for the Home Department [2010] 1WLR 855 at para 34.

[4] The petitioner's challenge to the respondent's decision of 21 September 2011 can be split conveniently into two separate categories. First is an attack on the treatment of the material provided in support of the further submissions with the contention that the respondent has acted unreasonably ex separatim irrationally at various points of the decision letter number 6/1 of process. Secondly, there is the argument that the respondent failed to approach the issue of the best interests of the petitioner's children in a manner consistent with the applicable law. In particular there is a contention that the respondent ought to have given the petitioner's elder child the right to be heard and given due weight to any views expressed. I will deal with these two categories separately.

I. The respondent's treatment of the fresh material

(i) The Refugee Convention

[5] The first criticism made of the respondent's approach is the position taken in relation to a claim in the letter of 13 September 2011 that the petitioner would be "at risk of suffering serious harm under the Refugee Convention and Articles 2 and 3 ECHR" were she retuned to Nigeria. The respondent records at paragraphs 14 - 16 of the decision letter that a concession had been made before the Immigration Judge in April 2010 that the petitioner's asylum appeal could not succeed and would require to be dismissed. The letter also records that in the absence of submissions either withdrawing that concession or explaining on what basis the petitioner would now seek to engage the Refugee Convention, the further submissions made would be assessed only having regard to Articles 2 and 3 ECHR and not the Refugee Convention. The contention of the petitioner is that as she has raised a question of her daughter being at risk of Female Genital Mutilation (FGM) which can engage the UN Refugee Convention, the respondent required to acknowledge that and apply anxious scrutiny to the matter. In my view there is no substance to this criticism. The issue of FGM was not raised on behalf of the petitioner in connection with her alleged well‑founded fear of persecution on a return to Nigeria or in relation to the issue of sufficiency of protection. It was raised by her in the context of her Article 8 claim. In any event it is addressed as a stand alone issue by the respondent in the decision letter at paragraphs 54 - 57. Accordingly, it has been dealt with in the context in which it is raised and I do not consider the respondent can be criticised for making no reference to a Convention which was not relied upon in the further submissions having regard to this specific concession in relation to it made at an earlier stage.

(ii) The documentation produced
[6] The petitioner's central claim before the Immigration Judge was that she feared for her life should she be returned to Nigeria because of the conduct of her father‑in‑law. Her position was and remains that he, and those acting on his behalf, forced her out of her home, attacked her and attempted to kill her as a result of her resistant to forcible membership of the Okonko Cult. The Immigration Judge rejected the petitioner's account on this. She was not found to be credible and there was an absence of corroborative evidence. The new material produced includes a letter said to be from El‑Amin Chambers containing an affidavit of a solicitor, a statement from a cameraman and a statement from a gateman. There is also an email said to be from the petitioner's brother. The respondent records the negative credibility findings of the Immigration Judge. The petitioner's contention is that no emphasis should have been placed on those findings because the material did not emanate from the petitioner and creditability and reliability were accordingly unimportant. It must be noted, however, as pointed out by counsel for the respondent, that at paragraph 12 of the decision letter the respondent cites the relevant passage from WM (Drc) and AR (Afghanistan) v Secretary of State for the Home Department [2006] EWCA civ 1495 in relation to this matter. Accordingly, it is clear that the respondent was aware that where new material does not emanate from the applicant it cannot be said to be automatically suspect. However, the passage in question entitles the Secretary of State to have in mind, where relevant, any previous finding as to the honesty or reliability of the applicant. For that reason I do not consider that the respondent can be criticised for setting out, at paragraph 17 of the decision letter, the negative credibility findings made by the Immigration Judge.

[7] In examining the new material itself, at paragraphs 23 - 34 of the decision letter the respondent makes clear that the lack of acceptable corroborative evidence on which the Immigration Judge relied is not rectified by the new material in question. There is a careful examination of the documents and certain inconsistencies as recorded (at paragraphs 26 and 27 of 6/1 of process). There is an absence of information about the qualifications of the signatories from El‑Amin Chambers and reference is made to the availability of forged documents in Nigeria. The Country of Information Report ("COIR") Nigeria states that documents that are submitted in support of UK visa applications have to be vigorously examined and checked because the use of forged documents is widespread. It seems clear, then, that the respondent was aware of the correct approach to be taken to material that does not emanate from the applicant herself. However, in light of the relevant COIR findings in relation to such documents a particular conclusion is reached in relation to the material produced, namely that it effectively adds nothing to the petitioner's own account which had not been accepted at earlier stages. While it was pointed out by counsel for the petitioner that corroboration is not specifically required for such applications, the context of the documents provided to the respondent was that it was said to constitute new material creating a realistic prospect of success before another Immigration Judge. The respondent refers to the absence of a witness statement from the petitioner's husband and the lack of explanation as to why one had not been obtained. She was entitled to do so - CST (Ethiopia) v Secretary of State for the Home Department [2004] UKIAT 00119 at paragraph 15.

[8] The petitioner specifically criticises the respondent for failing to highlight that at paragraph 11 of the affidavit contained in the bundle number 6/2 of process it is said that the petitioner's father-in‑law is "...an influential businessman in Nigeria with widespread tentacles and business connections across the major cities in Nigeria." It was submitted that the respondent could not rationally have concluded that there remained a lack of evidence about the petitioner's father‑in‑law's influence throughout Nigeria. However, it seems to me that, reading the decision letter as a whole and in particular the passages relating to the new documentary material, it is clear that, having regard to the reservations expressed about the provenance of the affidavit and the fact that its content seemed based purely on the information given by the petitioner, the conclusion at paragraph 28 of the decision letter that the document would not create a realistic prospect of success before another Immigration Judge is a conclusion that the respondent was entitled to reach.

[9] In my view it cannot be said that the criticisms of the documentary material made by the respondent were insufficient for her to reach the conclusion that such documentation was not apparently credible. The decision letter is also criticised, however, for presupposing the weight that might be attached to such documentary material by another Immigration Judge. Thus, if there was doubt as to whether statements about the petitioner's father‑in‑law were from the petitioner herself or from the barrister's own knowledge such statements should be construed in favour of the petitioner in determining whether there was a realistic prospect of success. However, counsel for the respondent referred to and relied upon the case of Tanveer Ahmed STARRED v Secretary of State for the Home Department (Pakistan) UKIAT 00439 in which it was stated that it was for an individual claimant to show that a document on which he seeks to rely can be relied on. In my view, the respondent has set out in some detail, and for reasons that are on the face of it sound, the reservations held about both the nature of the material and its contents and I am not persuaded that her approach to this issue was in any way irrational or unreasonable.

(iii) Sufficiency of protection
[10] Paragraphs 35 to 41 of the decision letter deal with the petitioner's assertion that she will be unable to secure protection on a return to Nigeria. In support of that contention the petitioner produced further documentation including an email said to be from her brother in Nigeria stating that he has been unable to obtain a police report to corroborate his sister's account. Further, five reports on the Okonko Cult were submitted setting out a historical narrative of the Okonko and their customs. The respondent concluded that as there was no evidence to suggest that the police in Nigeria are unwilling or unable to protect citizens from the Okonko Cult and as the petitioner had never contacted the police regarding any form of harassment or other problems with the Okonko there was nothing to support an assertion that she would be unable to obtain protection in Nigeria should difficulties arise. In this context reference was made by counsel for the petitioner to the COIR for Nigeria, 2011(number 6/3 of process). At paragraph 8.06 of that report there is reference to corruption within the police force in Nigeria, a lack of confidence in them and details of certain extortion practices. It was submitted that an analogy could be drawn with the case of Hussain v Secretary of State for the Home Department 2005 SC509 where widespread corruption within the police force (in Pakistan) led to a conclusion that there was an insufficiency of protection on a return. However, it is noteworthy that the issue of police failures in Nigeria was not a matter raised by the petitioner in the letter number 6/2 of process making further submissions in support of a fresh claim. In any event, I accept the submission of counsel for the respondent that this issue cannot be separated from the issue of internal relocation to which I now turn.

(iv) Internal Relocation
[11] The respondent's decision letter of 21 September 2011 makes detailed comment on the petitioner's claim that internal relocation would be unduly harsh. In submitting that the treatment of that issue was unreasonable and irrational counsel founded on an email said to be from the petitioner's brother indicating that her family is no longer willing to assist her because she had given birth to a child without naming the father. It was also submitted that the respondent was speculating by referring to assistance that might be available to the petitioner through Refugee Action. Emphasis was placed on the Country of Origin Information Reports, which document discrimination against women in Nigeria.

[12] It was not disputed that the correct approach to considering internal relocation as an option for someone in the petitioner's situation was to consider whether it would be reasonable or unduly harsh to expect her to so relocate - CAH and others (Sudan) v Secretary of State for the Home Department [2008] 1AC678. The conclusion reached by the respondent was that there was no realistic prospect of an Immigration Judge concluding that there was a real risk of the petitioner's father‑in‑law establishing her whereabouts if she were returned to a different location in Nigeria. Further, at paragraph 51, following citation of relevant case law, it is stated that the petitioner is likely to be regarded as a resourceful woman given her previous education and work experience. Accordingly, statements in the Country of Information Reports indicating that a woman returning to Nigeria without support from her family might be in a situation that would be unreasonable for her were not found to be directly applicable to this particular petitioner. In essence, the respondent did not find that it would be unduly harsh for this petitioner to return to Nigeria whether or not she had family support. At paragraph 46 it is stated:-

"By your client's own account she moved from her home village after graduating from university in 2000, she set up her own business and was also working as an independent TV producer. It is considered that she would be able to re‑establish herself in a different city on return to Nigeria. Your client is clearly an educated woman who led a relatively affluent lifestyle in Nigeria, there is nothing to suggest she cannot return to Nigeria and find work to support herself and her children or that it would be unreasonable to expect her to do so."

It seems to me that the passages relied on by counsel for the petitioner in relation to difficulties that might be faced by a single woman in Nigeria do no more than indicate that the respondent was required to scrutinise particularly carefully the details of the petitioner's situation before reaching a conclusion. Reading paragraphs 42 - 53 of the decision letter together, it seems clear that such careful consideration was given to the matter of internal relocation. It is always possible that a different decision maker may have reached a different conclusion on the same facts. However there is no question of that being sufficient to indicate an error in the approach of the respondent. So far as the role of Refugee Action is concerned, it was not disputed that such a programme was available. Speculation was said to be in reaching a conclusion that such an organisation would assist the petitioner. It seems to me, however, the respondent's conclusion does not rely on that assistance being available, it is simply mentioned as one of several considerations, the most important being that this particular petitioner was not someone without the education and resources to re‑establish herself on a return. For these reasons, I do not consider that the criticisms of the respondent's approach to internal relocation are well-founded.

(v) Female Genital Mutilation ("FGM")
[13] As indicated earlier in this opinion, the petitioner sought to raise the issue of FGM as part of her fresh claim, rather than attempting to re‑raise the issue of the applicability of the Refugee Convention. It is in the context of whether there is a fresh claim with a realistic prospect of success that the matter is addressed by the respondent at paragraphs 54 - 57 of the decision letter. In essence, the petitioner claimed that her daughter will be circumcised if she returns to Nigeria with the petitioner. The decision letter refers to the relevant passages of the COIR Nigeria (2009) regarding FGM and concludes that whilst it is illegal and banned in 12 states it is still prevalent in Nigerian society. The respondent's treatment of the issue of FGM is linked to the conclusion reached in relation to internal relocation. As it was concluded that the petitioner would be able to relocate away from her home area, it was concluded that she could move somewhere where this would not be a threat. Further, it is noted that it was said to be the petitioner's own family who have threatened to perform FGM on her daughter, but at the same time that family is said not to want anything to do with the petitioner. For these reasons, the issue of FGM raised by the petitioner was not considered to be something that would lead an Immigration Judge to conclude that the petitioner and her children required protection in the UK. It is also recorded that there is no statement to the effect that the petitioner herself had FGM performed on her previously, thus there was no material confirming her family's attitude to the practice.

[14] At the hearing before me, counsel for the petitioner's primary contention in relation to FGM related to the issue of the Refugee Convention already dealt with. That apart, there is no substantive basis upon which the respondent can be said to have erred in the approach to this particular issue.

[15] For all the reasons stated, I do not consider that an error in approach can be detected in the decision letter in relation to the treatment of the new documentation produced and the issues raised by the petitioner under this first category.

II. Best interests of children

[16] A substantive challenge is made by the petitioner to the way in which the respondent considered the best interests of the petitioner's children including an alleged failure to take the views of the older child into account. This issue is dealt with at paragraphs 60 - 79 of number 6/1 of process. The starting point is Section 55 of the Borders Citizenship and Immigration Act 2009 which requires the Secretary of State to make arrangements for ensuring that inter alia the functions of the Secretary of State in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. The provision gives effect to the UK government's obligations under the United Nations Convention of the Right of the Child ("UNCRC"). In particular, Article 3.1 UNCRC provides that the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. The significance of these provisions has been examined by the Supreme Court in the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. In particular, the relationship between the requirement to take the best interests of the child so that it is a primary consideration and the legitimate aim of immigration control was considered. At paragraph 33 of ZH Baroness Hale JSC expressed the following view:-

"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. ..."

[17] There was no dispute at the hearing before me that the views expressed in ZH (Tanzania) summarised the correct approach to be taken to the issue of the best interests of children in immigration matters. Reference was also made to MK (best interests of child) India [2011] UKUT 00475 at paragraphs 13 - 17. However, what was contended was that the respondent in this case had taken insufficient account of concerns stated in the COIR Nigeria in relation to infant mortality, major healthcare issues such as HIV and Aids, illiteracy and violence against children. Further, references were also made in the report to challenges in implementing a reasonable level of education in Nigeria and a statement that girls were educated to a lower standard than boys. These concerns are all set out in paragraph 25 of the COIR Nigeria lodged in 6/3 of process.

[18] Counsel for the respondent pointed out that the facts of ZH (Tanzania) where the relevant provisions properly applied led to a conclusion that that removal would be a disproportionate interference with the children's rights under Article 8 to respect for their family life were very significantly different from those in the present case. A central concern in ZH had been that if the mother was returned to her country of origin the family would be split. The children in that case were British children, not simply through being born here, but by having one British parent. They had an unqualified right to live in this country, had lived here all of their lives, were being educated here and had other social links with the community in this country (see paragraph 31 of ZH). In this case, the petitioner's children at the time of the relevant decision letter were aged five and six months only. The older child, P, had entered the UK aged three and a half. The younger child was born at a time when the petitioner immigration status was extremely precarious. Neither child has any right to be here other than the claim that removal would be an interference with their Article 8 rights. It was submitted that the quality of life and engagement with the country is very different when comparing young children such as these with a teenager. The older the child, the more likely it is that they will have ties outside the nuclear family. Accordingly content was very important and only in the most exceptional circumstances would removal be a violation of Article 8, particularly where the ties were created when the immigration status was precarious.

[19] On the issue of the child's views, the contention of counsel for the petitioner was effectively that the respondent was obliged in all cases to enquire as to whether a child or children wished to express any views. It was submitted that there was a positive duty on the Secretary of State to enquire regardless of whether the issue was raised by the petitioner. It was accepted that there was no statutory duty to raise the specific question of the child's views but it was contended "...if alarm bells are ringing, the Secretary of State would have to give an opportunity to have the child heard." In other words, in any case where there was a child who might be old enough and mature enough to express a view the Secretary of State required to ask herself the question as to what those views might be and to make appropriate investigations. It was submitted that if the issue of the child's maturity was borderline, this should be decided in favour of the petitioner and it should be assumed that the respondent required to act upon the issue. While was accepted that in the case of HS v Secretary of State for the Home Department 2011 SC 324 the Inner House had confirmed that there was no onus on the Secretary of State to look for material not offered by a claimant, nonetheless the issue of the child's views was one that the respondent ought to have been alert to.

[20] In response in relation to the specific question of children's views counsel for the respondent referred to paragraph 34 of ZH (Tanzania) and submitted that there was nothing in that passage to suggest that there was an obligation in every case to consider the views of the child. The relevant passage is in the following terms:-

"But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents this should not be taken for granted in every case."

The relevant issue was whether the respondent was under an obligation to undertake investigations. Further, and relying on the case of HS cited above it was submitted that to be in error on such a matter the petitioner would have to demonstrate not only that the respondent erred in her approach but also that, had she considered the matter properly, there was a realistic prospect of a different decision being reached. It was important to note that in this case the petitioner does not offer what difference an investigation into the child's views would have made and in what way it might have affected the outcome of the decision. Reference was also made to the opinion of Judge Beckett Q.C. in AM (AP), NM & DM v Secretary of State for the Home Department [2012] CSOH 24 at paragraph 44. The Temporary Judge there expressed the view that seemed clear that Baroness Hale in ZH (Tanzania) was not suggesting that in all immigration cases involving children they would have to be interviewed or that reports from other agencies would necessarily have to be obtained. Much depended on the circumstances of each case and whether there was sufficient material available to the decision maker to reach a view.

[21] It is noteworthy that there is no suggestion in this case that the respondent did not consider the applicable law on the issue of the requirement to take the best interests of the child into account as a primary consideration when exercising a function in relation to an immigration matter. Counsel for the petitioner accepted in terms that those interests were taken into account by the respondent "...as a first and distinct enquiry". That was an important concession in light of the view expressed by Lady Hale in ZH (Tanzania) (at para 26) that the requirements of Section 55 of the Borders Citizenship and Immigration Act 2009 to treat the children's interests as a primary consideration,

" ......did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first..."

At paragraphs 62 - 70 of the decision letter there is detailed reference to the statutory provision, the applicable case law and the relevant guidance in relation to the issue of the children's best interests. I am not persuaded that the relevant passages illustrate that the respondent failed to take sufficient account of the general concerns raised about the health and education issues in Nigeria. The most recent COIR Nigeria was clearly taken into account by the respondent. One part of it is quoted in the decision letter (at para 73) which records that education to 15 years of age is free and compulsory in Nigeria. Again the respondent placed some emphasis on the petitioner's own education, received by her in Nigeria and the lack of language barrier for the children. The primary consideration of the best interests of the child can be overridden by the need to maintain effective immigration control. While it can be said having regard to the material produced that the health and educational opportunities for the petitioner's children would be better in the United Kingdom, the conclusion reached was that having regard to all the available information and bearing in mind that the family unit has its cultural and ethnic origins in Nigeria, their removal would not be a disproportionate interference with the children's right to respect for their family life. In my view that was a conclusion that the respondent was entitled to reach on the available material (leaving aside any issue of the older child's views which was not raised and is dealt with below) and I reject the contention that in doing so she did not take sufficient account of the documentation produced. Again it might be said that a different conclusion could have been reached on the same material but that is insufficient to illustrate an error in approach.

[22] A more difficult question is whether it could be said that there is an obligation on the part of the respondent to explore, in every case of this sort in which there is a child, the issue of that child's views. This was not a matter raised by the petitioner in representations to the respondent at any stage, but if there is such an obligation and the respondent failed to make the necessary enquiry, the matter of the children's interests might have to be revisited. The United Nations Convention on the Rights of the Child ("UNCRC"), in addition to providing that in all actions concerning children, their best interests shall be a primary consideration, has the following requirements in Article 12 about eliciting children's views;-

"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the chid.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

This country's obligations under the UNCRC do not extend to a requirement to hearing from a child in every immigration case. What is required, as Baroness Hale stated in ZH (Tanzania) (at para 37), is a willingness to consider hearing directly from a child who (i) wishes to express a view and (ii) is old enough to do so,

[23] It seems to me that there will be many cases in which the age of the child is itself to put the respondent on notice that he or she might have something relevant to say on the issue of removal from the UK. There will be other cases in which there is doubt about whether the child is old enough or mature enough to express a view on the matter but where there is an indication that he wishes to do so. Or the views of the child concerned may be put forward but there is an issue about the weight to be attached to them. In all of those situations the dicta in ZH (Tanzania) does not in my view go beyond a requirement to elicit the views of a child who wishes to express them. However, where a child is at a stage of life where they are likely to have built up social contacts outside the nuclear family and have come to rely on the education system in this country, a point may be reached where it is self evident that any views they wish to express will be an important, albeit not determinative, part of the exercise of addressing their best interests as a primary consideration. In such a situation a decision not to enquire whether such a child has a view to express may be open to criticism. That was not the situation here. The possibility of the elder child wishing to express a view was not raised in the letter making representations that she asked be treated as a fresh claim. He was five years old and at the very beginning of his formal education when the respondent made her decision to refuse to do so. In those particular circumstances I do not consider that "alarm bells should have been ringing" as counsel for the petitioner contended. Further, there is nothing in the petition itself to indicate either that the elder child in fact wishes to express a view, far less how that view might affect the outcome of the case. Thus even at this stage it is not being contended that the child's interests have not been given the primary consideration they deserve because he has something relevant to say and has not had the opportunity to be heard on that. The petition states only that the respondent "...ought to have asked the petitioner's oldest child to express their views on being removed back to Nigeria. The respondent ought to have given the petitioner's eldest child the right to be heard and due weight given to those views." In my view, there was nothing at the time of the decision to alert the respondent to any issue of the child's views because in the absence of any suggestion that he wished to do so, he was not of an age where he could be presumed to be mature enough to have something relevant to contribute. In any event, as counsel for the respondent acknowledged, if subsequent to the decision, the child's views became relevant because of the passage of time, the respondent would be obliged to consider any fresh representations in relation to it.

[24] For completeness I should note that there was no criticism by her counsel of the approach taken to the general Article 8 claim of the petitioner in relation to removal being a breach of her family life. This aspect was dealt with after the first and distinct consideration given to the children's interests. The five questions that must be asked in considering an Article 8 application, as identified in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 are all addressed, appropriately, at paragraphs 82 - 93, together with other relevant authorities.

Decision

[25] In conclusion, for the reasons given above, I do not consider that the respondent can be said to have erred in her approach at all, either in the treatment of the fresh material or when approaching as a first consideration the children's best interests, including in respect of the issue raised in the petition about the views of the older child. Accordingly, there is no basis upon which this court should intervene with the decision reached.

[26] I shall sustain the respondent's third plea-in-law and refuse the petition, reserving meantime all questions of expenses.