RA (a child by his litigation friend) and BF v SSHD & Office of the Children’s Commissioner 2015
Five years after the judgment in ZH Tanzania it was apparent that despite Lady Hale’s clear statement of the weight to be given to the rights of the child, and call for the voice of the child to be heard in immigration proceedings, children were still going unheard and that the SSHD was failing to make the best interests of the child a primary consideration. Children were still being punished for the mistakes of their parents.
At the time of the hearing RA was a 5 year old British-born boy. He and his mum BF had been living in Gateshead for almost all his life. BF had lived in the UK for a significant period of time, and had made various applications for leave to remain which had been unsuccessful, including an unsuccessful asylum claim which was dismissed when RA was approximately 9 months old. BF suffered from depression, and from physical health problems. There had been some concern about her ability to parent RA, and his nursery had noted developmental delay. From the period when RA was 9 months old, until he was almost 4, although his mother had been a failed asylum seeker there had been no removal action taken against her. In April 2013 plans for removal had gathered pace. However BF’s mental health deteriorated rapidly, she became suicidal and she became a psychiatric inpatient. She was unable to care for RA, and lacked capacity to make arrangements for his care. RA was placed in local authority care as a Child in Need, and was placed in foster care. His foster carers noted that although he was nearly 4 years old, his speech was very poor, and his eating was disordered. He appeared to have no experience of physical affection – he didn’t know what a cuddle was. RA appeared to be developmentally delayed. During his time in foster care RA’s development improved considerably and he learned to talk, and began to eat a balanced diet, and to eat without cramming food into his mouth.
BF spent approximately 7 weeks as a psychiatric inpatient. In light of RA’s developmental delay, and concerns about BF’s ability to parent him, he remained in foster care for a further period, before a staged return to his mother’s care in October 2013. Following his return to his mum, the local authority put in place a Supervision Order to ensure that RA’s wellbeing and progress was monitored, and that his mother was supported to improve her parenting skills. RA’s foster carer also maintained close links with BF and with RA’s school and remained a very important person in RA’s life – providing him with consistent and reliable love and support.
In October 2014 the Supervision Order ended, and the local authority did not believe that further supervision was required, but RA remained a Child in Need as his mother felt that she required ongoing support and assistance to meet his needs in light of her precarious mental health.
Despite this, in January 2015 the family was detained and removed to Nigeria. No further assessment of RA’s needs had been undertaken since he was 9 months old, and there was no apparent consideration of whether removal to a country he had never been to was in the best interests of a 5 year old with significant developmental delay, and a mother with poor mental health and an accepted inability to parent alone. The decision to remove RA from the UK was predicated entirely on the fact of his mother’s poor immigration history and no separate consideration was made of RA’s needs and best interests in this context.
On return to Nigeria, BF’s mental health deteriorated rapidly, and she was unable to care for RA or meet his needs. She tended to respond with irritation, and sometimes violence, when RA understandably became upset about their situation. The family had no means of support in Nigeria and BF was too unwell to make any attempt to resolve this. The family were supported financially and emotionally by RA’s foster carers who raised money in their community to support the little boy they loved.
MiCLU became involved via the Office for the Children’s Commissioner, initially providing second tier advice and guidance to all those involved, and later contributing to legal arguments in relation to a Judicial Review application challenging the legality of the decision to remove the family. MiCLU took the strategic decision not to bring the Judicial Review challenge ourselves as this would require us to act for both parent and child. MiCLU were aware that if the challenge was successful, a further application would be required within the UK in which RA would need to be represented separately, and that acting for the mother in relation to the Judicial Review would cause a potential conflict of interests.
The Upper Tribunal agreed that the decision to remove the family had been unlawful and had failed to have regard to the best interests of RA. The removal decision was quashed, and the SSHD was ordered to return RA and BF to the jurisdiction.
Following return to the UK MiCLU represented RA in his application for asylum. This case raises important issues in relation to children’s best interests in the asylum context, and also in how to assess the best interests of child who is too young to fully understand the process which affects him. The asylum claim was evidenced by numerous witness statements from the adults involved in RA’s lives, including his teachers, mother and former foster carer. Expert reports were commissioned including a ‘voice of the child’ report from an Independent Social Worker. RA has been granted permission to remain in the UK. He is safe now. However, the fight to ensure that the best interests of children are respected and considered in the removals process continues, as does RA’s asylum appeal.