LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
The case of Akhtar v Ayoub  EWHC 3840 (Fam) serves as an important reminder of how far the High Court can go to assist a spouse allegedly stranded abroad by her partner.
The case concerned four children aged 17, 15, 14 and 7 years old. The three eldest children had lived with their father in Blackburn for an extended period of time. The youngest child had been living with his mother in Pakistan but had travelled to the UK recently to live with his father.
The mother who was a Pakistani national claimed that she had been abandoned in Pakistan by her British husband. She also claimed that her husband was controlling and that he had tried to force their teenage daughters into marriage. The allegations were strongly denied by the father who was clear that the mother's assertions had already been investigated by Children's Services and found to be fabricated. The father also argued that the mother's concerns had previously been placed before a Circuit Judge and that those earlier proceedings had now finalised. He contended that the mother had gone to Pakistan voluntarily and was now using wardship as a mechanism to return to this country. The mother sought the assistance of the High Court to return to this jurisdiction to see her children. She also requested a fact finding hearing to determine the allegations she had set out. Despite the assistance of the High Court, the mother's application to return the UK failed, in part on the basis of her record of previous offences of dishonesty.
Following repeated attempts to secure the return of the mother through recordings on the face of the orders of the High Court over a period of 6 months, the matter came before His Honour Judge Tyzack QC (sitting as a judge of the High Court) on 23 October 2013. The same issue of mother's immigration was raised before him.
On behalf of the mother it was argued that wardship proceedings should continue so that there could be a full fact finding hearing. It was further argued that the matter should be listed before a Judge of the Family Division who is also a nominated Judge of the Administrative Court so that the Court could determine the merits of the mother being able to return through an application under section 29 of the Senior Courts Act 1981. His Honour Judge Tyzack QC reluctantly agreed, stating that in his view it would be a ‘final chance' for the mother to argue her case during these proceedings. The case was therefore listed for determination before Mr Justice Holman on 8 November 2013. By that time the proposed argument under the section 29 of the Senior Courts Act 1981 was no longer relied upon on behalf of the mother.
The subsequent judgment of Mr. Justice Holman is a useful reminder of the limits of what the High Court can properly do in order to assist in the return of a spouse allegedly stranded abroad. Given the length of the proceedings, Mr Justice Holman commented that the wardship had become futile and potentially abusive of the proper boundaries between the High Court and the Secretary of State in immigration matters.
A fact finding hearing was nevertheless sought by video link on behalf of the mother as it had been done previously before Honour Judge Tyzack QC, who had commented that the guidance was clear that this should be considered early on in proceedings as outlined by Mrs Justice Hogg in Re S (Wardship)  1 FLR.
Mr. Justice Holman considered that a fact finding exercise would:
‘be both pointless and largely impractical. It is pointless, for the present reality is that the children are here (and the mother does not suggest they should live anywhere other than England) and the mother cannot be here. It is impractical, because in my experience attempts to have fact finding hearings by video link or similar connections to Pakistan almost invariably break down with technical failures, and break down and degenerate almost into farce. So I see no current point or purpose in a fact finding hearing and I am not willing to give directions for one.'
Mr Justice Holman went on to state that there was no continuing point or purpose in the children remaining wards of Court; there is a necessary boundary between wardship proceedings and the exercise of executive decision making when it comes to immigration matters. The High Court can indeed give opinions, recordings and encouragement to the Secretary of State to take a certain course of action. However, in the face of a clear decision which has taken such recordings into consideration, there comes a point where wardship proceedings are futile.
The message arising from the case is that the boundaries between the wardship jurisdiction and the powers of the Secretary of State should not be blurred; wardship proceedings should not be used where the Administrative Court is the proper forum. This was made plain by Mr. Justice Munby in S v S  EWHC 2288 (Fam), a case concerning a child in detention as the child of a failed asylum seeker. Mr. Justice Munby stated:
‘ it is abundantly obvious that the purpose for which that declaration is being sought and the purpose for which - if it was granted - it would be used would be simply and solely to put pressure on the Secretary of State, it being asserted no doubt to the Secretary of State that here you have the considered view of the High Court, here you have the considered view of a judge of the Family Division, that the conditions in which this child is being kept are of concern and that his welfare is not being properly addressed. That seems to me, with all respect to counsel, to be a classic example of an abuse of the wardship process, the purpose not being directly to enhance the welfare of the child - the very form of declaration tacitly accepting that I cannot directly affect the welfare of the child - but intended to put pressure upon the Secretary of State as to the exercise by her of her powers. In other words it seems to me to be, insofar as it is properly a matter for judicial declaration or judgment at all, an attempt - ingenious but nonetheless inappropriate - to persuade the Family Division to embark upon an exercise which, if it is properly a matter for judicial determination (as it may be) is properly a matter for the Administrative Court and not the Family Division.'
Mr. Justice Holman did not state that wardship proceedings should have never been brought. Indeed wardship proceedings have their proper place in such cases. However, he was clear that the continuation or repetition of the many expressions of opinion and requests to the Secretary of State would now border on an abuse of process.
Contact Zimran Samuel
Full CV: Download as PDF
The Red Book is the acknowledged authority on practice and procedure