Care Proceedings and Immigration Law Copyright Sarah Phillimore. March 2005 - All rights reserved. No part of this document may be copied or used without the written permission of the author.

1.         Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 921 Munby J

The father, mother and children entered the UK in 2002 and applied for asylum. This application was refused and the family were told they would be removed. The father’s subsequent appeal was dismissed on the basis that he was not telling the truth about why the family left. The father was detained pending removal and threatened to kill himself and his family. The mother took an overdose but was discharged from hospital on the same day.

The Local Authority obtained a care order with regard to the children on the basis that the children would suffer significant harm if in the care of their parents. The mother and the children were reunited while the father remained detained. A psychologist found that the father was not a threat to his family and had said what he did as a ‘crisis response’ to the prospect of removal. There were no concerns about the mother’s care of the children.  

The parents wished the care orders to remain in force, primarily on the basis that their ability to parent would be fundamentally compromised by a return to their country of origin.

Held – interim care order discharged; proceedings dismissed

(i)                  there was no evidential basis for either continuation of the ICO or the proceedings. There was no real or substantial risk of harm to the children and no point in the proceedings continuing.

(ii)                Regarding the children’s country of origin, it was no part of the court’s function to carry out a comparative analysis with conditions in the UK with a view to deciding which country might be thought preferable for the children. Neither was there any sound basis for the assertion that the parents would not be able to parent effectively if returned to their country of origin. 

Per curiam – the court must be alert to avoid allowing 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 that is not available to them within the immigration system or in the Administrative Court.

  

2.      What happens in practice if family lawyers do not appreciate the impact of immigration law? 

Father came from the DRC in  1996. He had married there but left his wife behind. He claimed asylum in the UK on the grounds of political persecution. His wife came to the UK in 2001 and managed to find the father. She became pregnant and separated from the father shortly after the birth of their daughter in 2002. The mother was accommodated in a hostel and upon being told that she would have to move from London to Newcastle as part of the policy to disperse asylum seekers, she became hysterical and threatened to kill herself and the baby. There were other incidents which gave rise to concerns about her mental health and the baby’s safety so the Local Authority was granted an ICO and removed the baby to foster care.

The parents then reunited and wished to care for their child together. They applied for a residential assessment of their parenting abilities.

At the time, all that was known of their immigration status was that the father’s application for asylum had been rejected and his appeal had been dismissed. The adjudicator found he was not telling the truth about his fear of persecution. The mother had apparently made an application but the outcome was unknown. The father was subject to a reporting condition which suggested that his removal could be imminent.

The Guardian supported the application for a residential assessment on the basis that the father would not be removed from the UK under Article 8 of the ECHR given his 7 year stay and the presence of his daughter. The Local Authority objected on the basis that both or either parent could be removed at any time and given the uncertainty over the parents’ status it could not be in the child’s best interests to remove her from foster care at this time. The Local Authority instead offered a community based assessment of the parents but with the child to remain in foster care. 

Ø      What problems can you see with the Guardian’s analysis?

Ø      Whose approach do you think prevailed with regard to a residential assessment?

Ø      What should the parties have done before this hearing?

Ø      What do you think was the eventual outcome for this family?