M & Anor (Children)

Where a parent in family proceedings is also involved in relevant immigration, asylum, housing or criminal proceedings, the family court must have full and current information about the other matter if it may affect the child-focused decision. Practitioners retain an ongoing duty to remain informed, even where separate advisers conduct the other proceedings. Parents must instruct those advisers to keep the family solicitors informed. Before each hearing, practitioners should obtain the relevant correspondence and file material, establish the stage reached and identify when any anticipated decision is likely. If information cannot be obtained, the court should be approached promptly for appropriate directions, including an order for delivery of the other advisers’ file or engagement under the President’s Protocol.

The judgment arose from two private law family cases in which hearings were delayed or rendered abortive because the parties’ representatives had failed to investigate parallel immigration matters. In one case, a mother’s precarious immigration status and lack of accommodation were relevant to an application for a residence order. In the other, a mother’s application for permission to remove a child from the jurisdiction depended on her asserted entitlement to permanent residence and an unresolved application to the Home Office.

The central issue was the professional and case-management obligations arising where the outcome of family proceedings may depend on a decision in connected proceedings or by a third-party decision-maker.

1. General duty. Where a parent involved in family proceedings is also involved in another relevant matter, the family court requires the fullest and most up-to-date information about that matter where it may affect the decision concerning the child. This includes the stage reached, any decision already made and, if a decision is awaited, when it is expected. The principle applies beyond accommodation cases to immigration, asylum, physical or mental health, criminal and comparable matters.
2. Practitioners’ responsibilities. Family practitioners have an ongoing duty to remain informed, notwithstanding that another firm or specialist adviser is handling the connected matter. Before each hearing they must take adequate steps to obtain the relevant information. The fragmentation of professional responsibility is no excuse for ignorance of matters material to the family court’s decision.
3. Parents and other advisers. Parents’ continuing duty of frankness and openness requires them to instruct advisers in the other matter to keep the family solicitors informed. Once authorised, those advisers likewise have a duty to provide that information.
4. Method of obtaining information. Copies of the other advisers’ correspondence and documents are generally preferable to informal questions and answers, which may be incomplete or misunderstood. Where information is difficult to obtain, prompt application should be made for directions. The court may consider a peremptory order for delivery of the other advisers’ file or an order under the President’s Protocol: Communicating with the Home Office.
5. Third-party engagement. Where the family outcome depends on, or is likely to be affected by, a decision of a local authority, the Home Office, the Crown Prosecution Service, an NHS Primary Care Trust or another decision-maker, consideration should be given at the earliest stage to bringing that decision-maker into appropriate direct engagement with the family proceedings. The approach in Holmes-Moorhouse v Richmond-Upon-Thames London Borough Council, [2007] EWCA Civ 970, was treated as having wider analogous application.