The background

The litigation

"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."

"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.)

"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)."

"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."

"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."

The role of Mrs Bollen

"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."

"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."

"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."

The law

"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.

"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."

"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".

"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."

"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".

"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."

"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."

"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

"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."

"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."

The judicial review proceedings

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.

"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]."

"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.

Interim relief

Postscript - the events of 22 September 2004

"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.