Akhtar v Ayoub

The Family Division must respect the constitutional boundary between family jurisdiction and immigration control. It may express requests and opinions to immigration authorities, who must take relevant matters into account, but it must not determine or interfere with the Secretary of State’s immigration powers, duties or discretions. Where wardship has become futile and its continuation would risk trespassing into immigration matters, the court may discharge wardship and existing orders. The underlying proceedings may nevertheless continue, and may be transferred for welfare investigation where a child’s circumstances require it.

The mother and father had four children. The three older children lived with the father in England, while the youngest had lived with the mother in Pakistan. The mother alleged that the father had deliberately stranded her in Pakistan. Earlier Family Division orders had requested that immigration officials facilitate her entry to the United Kingdom for the proceedings, but an Entry Clearance Officer refused entry clearance.

The mother sought continuation of wardship, further requests to the Secretary of State, and a fact-finding hearing. The issues were whether the court could properly continue the wardship in those circumstances and whether further investigation of the children’s welfare was required.

1. The wardship was discharged, together with all previous orders having continuing effect. The proceedings themselves were not ended.

2. Immigration control is entrusted to the Secretary of State for the Home Department and is governed by detailed legislation and immigration rules. The Family Division must not trespass into or interfere with that decision-making jurisdiction. It may express requests and opinions, but continued repetition of such requests cannot become a means of pressuring or effectively determining immigration matters.

3. The mother’s inability to enter the United Kingdom made continuation of the wardship futile. A fact-finding hearing concerning the alleged conduct of the father would serve no current purpose and was largely impractical, particularly because remote hearings involving Pakistan were liable to technical failure.

4. There remained a need to investigate the children’s present welfare, especially that of the youngest child, who was substantially younger, had not previously been investigated by the relevant local authority, and had recently moved from Pakistan to live with his father and siblings in England.

5. The proceedings were transferred to the Blackburn District Registry, to be dealt with by a circuit judge able to sit as a High Court judge under section 9 of the Senior Courts Act 1981. CAFCASS was directed to investigate and report on all four children, with particular focus on the youngest. The parties could file narrative statements, and the father was required to provide detailed proposals for direct and indirect contact between the children and their mother.

First-instance decision. The judgment refers to an earlier decision by His Honour Judge Tyzack QC on 23 October 2013, which maintained the orders for a short further period and directed that the matter be heard by a full judge of the Family Division.