HC Deb 03 November 1966 vol 735 cc825-36

11.29 p.m.

Motion made, and Question proposed, That this House do now adjourn.—[Mr. McBride.]

Mr. Richard Hornby (Tonbridge)

I am grateful for the opportunity of raising this matter, which concerns the custody of two children, aged seven and four, now in South Africa, whose father, Mr. Casely, is a constituent of mine. I do not think that the facts about this case are in dispute between myself and the Home Office. I am grateful to the Under-Secretary of State and to his right hon. Friend the Home Secretary for the conversations which I have been able to have with them. I will therefore deal with the facts very briefly in outline.

It is not, one must admit, a happy story. It does not reflect any credit on the Home Office, or the administrative procedures which the Department carries out through its immigration officers. The instructions of the High Court have been flouted, anxiety caused to my constituent, Mr. Casely, the father of these children, and very much concerned in the future wellbeing of his two children, who left this country while temporarily wards of court. I should, however, make it clear that it is not for this House or the Home Office to decide where the custody of these children belongs. That is a matter for the court, although it is possible for the Home Office to make it possible for the father of these children to have his case heard in the South African courts—for the children are now in South Africa— and it is only in that country that the case can be heard. I hope that, as a result of this debate, the case will be heard in the South African courts.

The marriage of Mr. and Mrs. Casely broke up and, on 2nd August, the Divorce Court gave the custody of the two children to Mrs. Casely. The right was then given to her to take the children out of the country. Mr. Casely subsequently learned the facts about the man with whom his ex-wife was associating and who, it was thought, she would marry, which made Mr. Casely take the view that it was in the interests of the children to reopen the matter of their custody, bearing in mind that there was a record of convictions against the man with whom Mrs. Casely was then associating.

Mr. Casely therefore initiated proceedings for a reversal of the court's decision. He did that on 22nd August, with the help—and this should be clearly on the record because it is a material point—of legal aid, which was available to him in this country. His object was to get the custody of the children returned to himself. As a result of these initiated proceedings, the children then became wards of court, either for a temporary period of 21 days, or until the case could be heard in the courts.

Meanwhile, it was known to Mr. Casely and his advisers that his ex-wife was planning to leave the country on 26th August, four days after the summons of 22nd August had been taken out. They discovered that Mrs. Casely planned to leave the country with the children on 26th August on board the "Edinburgh Castle", due to leave from Southampton on that date. As I understand the position, in those circumstances no enforcement powers are available to the High Court and responsibility for any enforcement action devolves on the Home Office immigration authorities or the police.

The Home Office was warned by my constituent and his advisers that Mrs. Casely and the children were likely to try to leave the country. The name under which they might try to leave was given to the Department, in addition to the name of the ship and the date of departure. Despite these warnings, the children and Mrs. Casely left the country in the ship, at the time, under the assumed name about which the Home Office had been warned.

The reason why this happened was, I believe, because of a culpable piece of bad administration, and neglect which must be admitted. Apparently the immigration authorities on the spot were not aware that anything had happened since the court proceedings of 2nd August to make the leaving certificate for the children, which Mrs. Casely had then obtained, no longer valid.

To take the story one stage further; after the departure of the ship, with the children and Mrs. Casely on board, a further court order was obtained directing that the children should not leave the "Edinburgh Castle", and, later still, directing that the children should be placed in the custody of the ship's officers. Nevertheless, despite the warnings given to the immigration authorities at Southampton, and despite the directions given to the ship's officers of the "Edinburgh Castle", when the ship arrived at Durban Mrs. Casely and one of the children left the ship. Mrs. Casely then applied to the South African courts for custody over the second child still on board, and there she and the two children now are, in South Africa, with all the legal proceedings that have taken place in this country set completely at naught, due to an admitted administrative error by the Home Office and the immigration authorities for whom the Home Office is responsible.

Thus the questions that I put to the Under-Secretary now are as follows. First, how is it that the children were, in fact, allowed to leave when the warnings had been given? It really is not good enough for the Home Office to say, as it has said in a letter to me, that it does its best but that it cannot guarantee success. I understand the point, but it still is not good enough. If court orders can be flouted as easily as this when very precise warnings have been given, something clearly is wrong, and I ask the Under-Secretary to give me an undertaking that he is looking into these administrative proceedings. I should like to know what tightening up he has been able to achieve. Not that this will help my constituent at all, but it may prevent an unwarrantable repetition of circumstances such as these.

Secondly, there is the question of the court orders to the ship's officers of the "Edinburgh Castle". As far as I can see, such orders were apparently completely valueless unless they were accompanied by directions to the ship—and this is a very difficult matter—to turn back in its tracks and come back to Britain. Unless those instructions are given, a ship goes on and presumably arrives in the territorial waters of another sovereign Power. Then, as I understand, the local law takes precedence over any order obtained in the British courts, and the piece of paper on which the British court order was written is totally valueless. I should like to know whether this is the view of the Home Office and whether there is or is not a case for the clarification of orders given to ships' officers in cases such as this.

Thirdly, one comes to the position in South Africa and the opportunities available to Mr. Casely in the courts there. It is, I am told, still open to Mr. Casely to apply for a variation of the South African court order under which Mrs. Casely obtained the custody of the children there. I quote from Mr. Justice Caney's judgment in this case: The order necessarily will not be final … there is a possibility that the father of the child may be able to present a case which would entitle him to some relief from this court. That is the position in the courts m South Africa where the children now are because of the administrative lapses which have occurred at the port of immigration in this country.

It seems to me that the least the Home Office can do is to give its very best assistance to enable Mr. Casely to pursue his case in the courts there. I mention the matter of assistance from the Home Office because the facts of the matter are that Mr. Casely is not a person of means. He was able to pursue his case in the British courts because legal aid was open to him. Legal aid, as the hon. Gentleman knows, is only available within the jurisdiction of the British courts and he has not at present got the means to pursue his case in the South African courts. In those circumstances, and in the light of the errors made in this country which removed the case from the jurisdiction of the British courts and which flouted the intentions of the summons proceedings of 22nd August, it seems I o me that the least the Home Office can do is to help.

What evidence has the Under-Secretary to show that the administrative procedures are being tightened up and that we shall not have a repetition of this sort of thing? Secondly, will he recognise the moral obligation—I take the point that it is not a legal obligation—to give some assistance to my constituent? It is not an easy case, either legally or in the matters under discussion; I accept that. The Home Office has many difficult cases to deal with, but this is a disturbing matter. The reputation of his Department over recent years has been under a great deal of criticism on grounds of inefficiency and sometimes on grounds of inhumanity. On grounds of efficiency, in this case the Home Office can do nothing for my constituent except prevent a repetition, but on grounds of humanity, the hon. Gentleman can do something to see that the case can be heard in the South African court. Will he make that possible?

11.41p.m.

The Under-Secretary of State for the Home Department (Mr. Maurice Foley)

The hon. Member for Tonbridge (Mr. Hornby) has spoken tonight in a most moderate and constructive manner about the case of his constituent, Mr. Terence Casely and his two children, and about the general problems illustrated by the events of this case. I am grateful to him for that, and I am glad of this opportunity to explain to the House some of the problems facing the Home Office in seeking to prevent the unauthorised departure of wards of court.

Let me confirm at the outset that there was in this case a failure of communications within my Department. This led to a misunderstanding as a result of which the immigration officer who saw Mrs. Casely and the two children at Southampton on 28th August believed that the High Court had given permission for the children to be taken to South Africa and accordingly did not attempt to prevent their embarkation. I am very sorry that this happened.

The hon. Member has raised the two issues which arise from this case. The first is whether the Government can do anything to assist Mr. Casely in the situation in which he now finds himself. The second is whether anything more could be done to prevent the unauthorised departure of wards of court. He raised the third question relating to the competency of the English and South African courts. He will be aware that this is a matter for the Lord Chancellor's office. I understand that he has had some discussions with the Lord Chancellor on this question of the jurisdiction between one court as distinct from another.

Turning to the issue about the unauthorised departure of wards of court, the High Court has its own officers, powers and procedures for the enforcement of these orders and, in general, the Home Office has no responsibility in this matter. There are, however, procedures which may result in its being a contempt of court to remove a minor from the jurisdiction of the High Court. The most common are the making of a minor a ward of court and the making of a custody order in respect of a minor. The ultimate sanction against removal is, and always has been, the powers of the court to deal with those who are in contempt of its orders. Until relatively recent times there was no check at the ports to reinforce this sanction.

About 15 years ago, as a result of a case which caused some public concern at the time, the Government of the day decided that further precautions were required. As a matter of practical necessity any such further precautions to prevent unauthorised removals from the jurisdiction have to be taken at the ports where the minors embark, by public officers who are stationed at these ports. There are no officers of the High Court stationed there. That is why the immigration service, and in certain circumstances the police, and thus the Home Office, become involved.

The current position is that the Home Office, on request, and on being satisfied first that a child is a ward of court or subject to an order of the High Court prohibiting his removal from the jurisdiction, and secondly that there is reason to believe that an attempt at removal may be made, will take such precautions as are possible against removal from a port in England or Wales.

For a number of reasons, it is quite impossible to be certain that these precautions will be successful. Any attempt to make them more effective would involve subjecting the general run of embarking passengers to far more stringent, irksome and expensive controls at the ports; and if it does happen from time to time that wards of court are removed without permission, this is a price we pay for preserving reasonable freedom from restriction for embarking passengers.

Moreover, even if we were able to make our precautions at English ports more effective, this would not prevent the removal of wards of court by way of Scotland, Ireland, the Channel Islands, or the Isle of Man, which are outside the jurisdiction of the English courts. Legislation would be necessary to deal with this aspect of the matter, and even then we could not prevent removal by way of the Irish Republic.

Apart from all this, one cannot wholly exclude the possibility of human error. The number of wards of court and other children in respect of whom precautions are in force at any one time is quite large, and messages have often to be sent out to the ports by telephone or telex when speed is important.

For all these reasons, the Home Office always makes it quite clear to every person who asks for precautions to be taken that we cannot guarantee success. The precautions are undertaken only on this explicit understanding.

I do not wish to appear complacent about this situation, but only to bring out the impossibility of our being able to offer anything approaching a guarantee against unauthorised removal. In the light of the events of this particular case—which were most unusual—we have reviewed our procedures, and I hope that there will be no repetition of the particular chain of misunderstanding which occurred here. We have in fact no evidence that the unauthorised removal from the jurisdiction of wards of court is at all common.

But this was by no means the first time it has happened in recent years. Nor is it the first time the matter has been raised on the Adjournmnt of the House. Early in 1960 one of my predecessors in this office explained to the House that, while it was well known that the Home Secretary was always ready to do what he could to vindicate orders of the High Court, it was equally well known that his powers did not always suffice for this purpose.

The hon. Member referred in some detail to the events leading up to this case. It was an unusual case. The unusual features were these. Following divorce proceedings, Mrs. Casely was given custody of the two young children by the Divorce Court. The Divorce Court gave her permission to take the children out of the jurisdiction to South Africa, and issued a certificate to this effect on 2nd August. At that time Mr. Casely consented to this.

Subsequently, Mr. Casely, acting, we understand, as a result of further information he had obtained, started wardship proceedings in the Chancery Division of the High Court by issuing an originating summons. This was his first step in an attempt to have his children made wards of court and their custody transferred to him.

The issue of the originating summons had the automatic effect, as the hon. Gentleman stated, by virtue of the statute law on this subject, of making the children wards of court for a strictly temporary period of twenty-one days or until the matter came before a judge. This action, taken on 22nd August, was entirely ex parte and the merits of the matter were not in issue at that stage. At the time when Mrs. Casely and the children left the country on 26th August the decision of the Divorce Court on custody had not been reversed, but the issue of the originating summons had the effect of temporarily suspending the Divorce Court permission to take the children to South Africa, until the issue whether their custody should be transferred to Mr. Casely came before a judge of the Chancery Division.

On 22nd August, the solicitors acting for Mr. Casely told the Home Office of the issue of the originating summons and were informed that we would take what action was possible to prevent the removal of the children. The usual warning was given that success could not be guaranteed. Messages were at once passed to Southampton by telephone and telex. The failure of communication which I have mentioned was that the immigration officer who saw Mrs. Casely and the children at Southampton on 26th August had not been made aware that the permission given by the Divorce Court on 2nd August for their removal to South Africa should not be acted upon.

The standing instructions to immigration officers say that if evidence of High Court consent for the removal of a ward of court is produced in the form of a written document, the ward should be allowed to proceed. The granting of such comment is quite common. The Divorce Court certificate of 2nd August was produced to the immigration officer, who accepted it in good faith and made no attempt to prevent the children's embarkation.

Mr. Hornby

Is not the key instruction in such cases to ensure that a cancellation order is given and not just the precise cancellation of the previous date? That seems to be the missing factor.

Mr. Foley

The hon. Gentleman is correct. Here we have a most unusual case where there are wards of court and then a second order, and it is rare indeed that this happens. In the light of our experience we have tightened up our machinery. The hon. Member may argue that this is closing the door after the horse has bolted. The immigration officer saw only the divorce certificate and accepted it in good faith and made no effort to prevent the children's embarkation.

It is very uncommon for a written consent by the High Court to be superseded by subsequent ex parte action while the children remain in the possession of the parent who had been given the consent. That is the unusual feature of this case. While our instructions have been supplemented to ensure against any recurrence of this particular misunderstanding, the chain of events in this case was so unusual that similar cases, if they occur at all, will probably be very rare.

I have already described the practical difficulties in the way of more effective precautions in the general run of cases and our review of our standing ward of court precautions has not revealed any way in which these general difficulties, which exist in all cases, whether unusual or not, could be overcome.

I have every sympathy with Mr. Casely, but I am afraid that it is not possible for the Government to assist him to pursue his case further. His children are now within the jurisdiction of the South African courts, and, as the hon. Member explained, Mr. Casely has been advised that the only action now open to him would be to apply in the South African courts for the custody of the children to be transferred from their mother to him. I am informed that such an action would be open to him and that the courts in South Africa would consider the interests of the children as the overriding factor in deciding whether they should be removed from their mother.

My right hon. Friend the Home Secretary has considered very carefully the hon. Gentleman's suggestion that financial assistance should be given to Mr. Casely to enable him to do this. I think that it is common ground that no question of legal liability exists and that any payment would be ex gratia and would be based upon a moral and not a legal obligation. My right hon. Friend considers, however, that a moral obligation could only be related to what the Home Office had undertaken to do. I have explained that we gave no undertaking that the embarkation of Mr. Casely's children would be prevented and I have explained why we are never in a position to give such a definite undertaking in any of these ward of court cases.

Mr. Hornby

The hon. Gentleman is getting back on to the legal obligation and not the moral one. Granted that there was no absolute legal obligation, that the Home Office was only doing the best it could and was not guaranteeing successful prevention, but the moral obligation is surely that they are the only people able to assist in the enforcement of court orders. Surely there is a moral obligation to try and pursue the case?

Mr. Foley

In so far as we accept and can accept only a moral obligation relating to what we have undertaken to do, and in so far as what we have undertaken to do is not absolute, there is no clear moral responsibility on the Home Office for something which has not been promised because it did not have the means of doing it in the first instance.

I have tried to explain that we gave no undertaking to prevent the embarkation of the Casely children and that we are never in a position to give such a definite undertaking in any of these ward of court cases. The Government could not start to pay compensation whenever they failed to do something which they had not promised to do and which was attempted only on the clear understanding that no promise could be given. Although this case was unusual, the impossibility of making any promise exists in every case and the moral responsibility to do what had not been promised, if there were thought to be such a responsibility, would likewise exist in every case. I am sorry that in these circumstances it is not possible to consider making any ex gratia payment to Mr. Casely.

The hon. Gentleman accepted the suggestion by my right hon. Friend that we should, however, make some inquiries about the present welfare of Mr. Casely's children, and the British vice-consul in Durban paid them a visit a few days ago. He has reported that they are well and happy and I hope that that will provide Mr. Casely with some re-assurance about his children's welfare. I understand that the children's mother has written to the hon. Member and that her legal adviser is also writing to him and will be pleased to discuss the case with him when he visits London next month.

Question put and agreed to.

Adjourned accordingly at four minutes to Twelve o'clock.