Councils scrutinised over deportation decisions

The recent case of M v LB of Islington (5 June 2003) is further
case which highlights the care that a council must take when it
proposes that it is in the interests of a child to leave the UK and
return, with his or her mother or father, to that parent’s
homeland.

The claimant in this case had been in this country for many
years having overstayed a visit from Guyana. She had married a man
with leave to the remain in the UK and the couple had a child. As a
result of the father’s immigration status the child was a
British citizen.

However, the marriage broke up and the mother no longer had
permission to stay in the UK, and was here unlawfully and with no
access to benefits. The council had limited powers to provide her
and her child with assistance pursuant to section 17 of the
Children Act under which services must be provided to safeguard and
promote the welfare of the child.

The council purported to consider the case and concluded that it
would be in the child’s best interests to return to Guyana,
and offered to pay one way tickets for both mother and child.

The mother challenged the Council’s decision and said this
offer was unlawful and alternatively the council should provide
support for the mother and child to stay in the UK.

The court agreed on two grounds. Firstly, the council had failed
to have regard to relationship between the child and her father.
Albeit that the children’s parents were separated, article 8
of the European Convention of Human Rights gave the child and the
father the right to respect for their family life, and contact
between father and child was ongoing  in the UK. The council had
also failed to recognise that the father’s permission was
required for the child to leave the UK.

Secondly, the council had failed adequately to ascertain whether
a return to Guyana would be in the best interests of the child. The
evidence revealed that there was very little family support there,
and very limited opportunities for employment for the mother.

The decision to make the offer was quashed.

Comment: In certain circumstances the court
will not interfere with a council’s decision that a child and
parent would be better off abroad and therefore the only support
which will be offered relates to travel arrangements. However, the
traumatic effect on the family coupled with rights to respect for
family life in the ECHR mean that the court will look at any such
decision with the utmost scrutiny. Any shortcomings in the
assessment made by the local authority is likely to mean that the
decision will be unlawful. 

Stephen Cragg

Doughty Street Chambers