Rotherham Borough Council v M & Ors

Care proceedings involving a person liable to removal must be decided by applying the child-welfare and statutory-threshold provisions, without regard to immigration policy. A Children Act order cannot prevent the Secretary of State from exercising immigration powers. The court’s jurisdiction should therefore be exercised sparingly where the proceedings concern removal. If there is no genuine child-welfare dispute apart from the immigration issue, continuing the proceedings to obtain findings intended to influence removal is an abuse of process. The court should also end proceedings which have become redundant and confer no solid advantage on the children.

These were care proceedings concerning two children whose parents had entered the United Kingdom unsuccessfully seeking asylum and whose removal directions had been issued. The proceedings began after the father made threats to kill himself and his family when told that removal was imminent, and the mother subsequently overdosed. Interim care orders were made, the children were temporarily separated from the father, and assessments were obtained.

By the hearing, the evidence showed no real or substantial continuing risk of significant harm from either parent. The local authority, children’s guardian and Secretary of State did not seek continuation. The central issues were whether the statutory threshold remained arguable, whether further assessments were required, and whether the proceedings were being used to delay or influence the Secretary of State’s removal decision.

1. Statutory task. The court’s task was confined to Part IV of the Children Act 1989. It had to decide whether there were reasonable grounds for believing that the circumstances in section 31(2) existed, as required by section 38(2), and whether continuation would promote the children’s welfare or provide a solid advantage.
2. Separation of functions. The court and the Secretary of State perform different functions. The court must be guided by the children’s interests and must not have regard to immigration policy. The Secretary of State’s decision involves a different balancing exercise in which the children’s interests are important but are not paramount. A Children Act order cannot deprive the Secretary of State of the power to remove the family.
3. Risk in the United Kingdom. The father’s threats were treated as a crisis response and the mother’s overdose did not establish a continuing risk. The evidence, including the psychological assessment and the local authority’s assessment, showed no real or substantial risk and did not satisfy even the reasonable-grounds test under section 38(2).
4. Risk on return. The court could not use care proceedings to compare living standards or social conditions in the United Kingdom and the country of origin, or to prevent return because the children might be better off here. Even assuming difficult conditions and possible detention, there was no sound evidential basis for concluding that either parent would be unable to care adequately for the children. Any relevant harm had to be attributable to parental care within section 31(2)(b)(i).
5. Disposition. Further investigations would add nothing material. The proceedings had no utility and no legitimate advantage for the children. Their continuation was sought only to frustrate or influence removal, amounting to an abuse of process. The interim care orders were discharged and the proceedings dismissed. The judge added that such cases need not ordinarily be transferred to the High Court merely because immigration proceedings are involved.

First-instance care proceedings in the High Court (Family Division). The judgment does not state any appeal from an earlier merits decision.