ZM v AM

Where a spouse is deliberately left without secure immigration status and is then sent abroad, the resulting separation from a child may constitute a serious breach of the right to respect for family life under Article 8 of the European Convention on Human Rights. In wardship proceedings, the court must scrutinise apparent agreements and orders affecting a child’s welfare, particularly where one parent is significantly disadvantaged and has had no effective opportunity to participate. Where the breach can be remedied only by restoring the excluded parent’s ability to enter the United Kingdom, the court may make declarations and consequential protective orders directed to the child’s welfare and reintroduction to the parent.

The applicant mother brought wardship proceedings concerning her severely disabled son, S, after being sent alone from the United Kingdom to Pakistan in 2011 and being unable to return because she lacked valid immigration status. She alleged that the respondent father had controlled and assaulted her, procured a 2011 residence order without her knowledge, and deceived her into travelling abroad. The father denied those allegations and contended that the proceedings were designed to secure immigration status for the mother and her subsequent husband.

The court had to determine the principal factual allegations, assess the effect of the mother’s exclusion on her relationship with S, and make consequential orders concerning S’s care and contact.

1. Findings on the mother’s case. The mother substantially proved her allegations. The father and his family exercised a high degree of control over her and the father assaulted her on a number of occasions. The mother knew nothing of the 2011 County Court proceedings. The residence order in the father’s favour had been obtained through a process that failed to protect her or adequately examine S’s best interests. The mother was subsequently tricked into travelling alone to Pakistan.
2. Immigration status and family life. The father’s failure to regularise the mother’s immigration position was a gross dereliction of responsibility. He knew that her departure would prevent her return. Her resulting three-year separation from S was a wholesale breach of the right to respect for family life under Article 8 of the European Convention on Human Rights. The only effective remedy was to restore her ability to enter the United Kingdom. A copy of the judgment was therefore to be made available to the Home Office and, if necessary, to the tribunal hearing her immigration appeal.
3. Protection of disadvantaged parties. A residence order concerning a child whose parents were living together required careful scrutiny. At a minimum, the mother should have had a face-to-face meeting with an appropriate professional before an order with significant consequences was made. The court process had provided no adequate protection for the mother’s or child’s rights.
4. Consequential orders. S remained a ward of court. Pending the mother’s return, voluntary Skype contact and exchanges of information were authorised without requiring the father’s approval. A Family Assistance Order was made to monitor and support the reintroduction. The 2011 residence order was discharged, and S was not to live elsewhere or be removed from England and Wales pending further directions. The father’s passport was to remain with the Tipstaff.