CHILDREN — Family proceedings — Practice — Parent involved in parallel immigration proceedings — Duty of counsel and solicitors — Procedure to be followed where relevant concurrent proceedings — Children Act 1989, ss 1(3), 8

In re M (A Child) (Family Proceedings: Immigration Issues); In re N (A Child) (Family Proceedings: Immigration Issues) [2008] EWHC 2281 (Fam); [2008] WLR (D) 306

FD: Munby J: 6 October 2008

Where a parent in family proceedings was also involved in some other relevant matter such as an asylum or immigration dispute with the Home Office, criminal proceedings or a housing dispute, practitioners acting for that parent had an ongoing duty to remain au courant with what was going on elsewhere even if that other matter was being handled by other professionals.

Munby J so stated in a reserved judgment which related to two cases, the first concerning a mother seeking a residence order whose immigration status was precarious and the second a mother with a residence order seeking to remove the child permanently from the jurisdiction. Hearings in both cases had proved abortive because of the failure of those acting for the parent properly to ascertain what was going on in the parallel immigration proceedings, the outcome of which was highly material to the decisions which needed to be made, with consequential delay for the child, waste of public money and the prejudice of other litigants whose cases were ready for hearing. The hearings were in private with leave given to report that part of the judgment relating to the procedure to be followed in such cases provided that the anonymity of the parties and their representatives was preserved.

MUNBY J said that a court considering whether to make a residence order was bound under s1((3)(f) of the Children Act 1989 to have regard to how capable each parent was of meeting the child’s needs. To make such a decision the court needed the fullest and most up-to-date information. Although the observations in para 35 of Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2008] 1 FLR 1061 related to matters of accommodation it was likely that an analogous approach would be adopted wherever capability was in issue. Practitioners involved in family proceedings had a duty to take adequate steps before each hearing to find out from professional advisers acting for their client in any other relevant matter what had been going on, where the other matters had got to and, if a formal decision was anticipated, when that decision might be given. To minimise uncertainty and misunderstanding it was preferable to obtain copies of correspondence and documents. If practitioners were finding it difficult to obtain relevant information prompt consideration needed to be given to approaching the court for a peremptory order or an order pursuant to the President’s Protocol: Communicating with the Home Office, originally issued in 2002 and since updated [2004] 1 FLR 638, supplemented by Guidance from the President’s Office: Communicating with the Home Office (January 2006) requesting relevant information from the Home Office. Where the outcome in family proceedings was dependent or likely to be affected by the decision of some third party consideration should be given at the earliest possible stage as to how that decision maker should be brought into some appropriate form of direct engagement with the family proceedings. The anonymity of the parties’ representatives would be preserved since it would be unfair to single them out for public criticism when experience showed their failings were all too common.

Appearances: None listed

Reported by: Jeanette Burn, barrister