When a court determines any question with respect to the upbringing of a child, the child's welfare should be the court's paramount consi deration, as at s.1(1) of the Children Act 1989.

The Act sets out various guidelines as to how the child's welfare may be assessed.But leave to enter or remain in the UK is governed by the Immigration Act 1971, Immigration Rules (HC395), Immigration Act 1988 and the Asylum and Immigration Appeals Act 1993.

There is no requirement on the secretary of state for the Home Department (SSHD) to take account of the best interests of the child, nor is the welfare of the child the paramount consideration, nor does the legislation enable children to express their views on decisions made about their lives.The Immigration Rules (HC395) govern the admission of non-British children to join parents settled in the UK.

These rules discriminate against children whose family is on a low income or is headed by a lone parent - children will only be admitted if the parents are able to maintain and accommodate them without recourse to public funds.

Sole parents must show they have had 'sole responsibility for the child' or 'there are serious and compelling family or other considerations which make exclusion of the child undesirable'.

This test takes no account of the welfare of the child save in very extreme cases.

Neither do cases where asylum seekers, who are granted exceptional leave to remain (ELR), are not allowed to apply for family reunion until four years after they have been granted leave, unless compelling compassionate circumstances prevail.Home Office policy DP/2/93 deals with children and cohabitation/marriage cases.

Although not incorporated into HC395, the SSHD must take this into account in deciding whether to deport (Iye v SSHD [1994] IAR 63; R v SSHD, ex p.

Amankwah [1994] IAR 240).

Extracts from the policy document read: 'however unmeritorious the applicant's immigration history, the court is strongly disposed to find a breach of art 8 (European Convention on Human Rights) where the effect of an immigration decision is to separate an applicant from his/her spouse or child'; para 2: 'As a general rule, deportation action...should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the UK if...(d) one or more children of the marriage (or cohabitation)has the right of abode in the UK.'Section B of the guidance deals specifically with children: 'Para 13.

The Family Court will generally attach much more weight to the child's welfare than to irregularities surrounding the immigration status of the child or a parent.

Where...court proceedings are designed purely to enable the child or parent to evade immigration control, consideration may be given to instructing the Treasury solicitor to intervene.

There must be evidence, not just a suspicion, that there has been a serious attempt to circumvent the immigration control.'There have been few reported cases where the disparities between the obligations under the Children Act 1989 and the immigration legislation have been considered.

It is accepted that the court does have jurisdiction to consider applications for residence orders in respect of foreign nationals, but due attention has to be paid to immigration law.

Although the welfare of the child is paramount there has to be a balancing exercise with the requirements of public policy (Re Fleur Matondo [1993] ImmAR 541).

Furthermore, a wardship or Children Act order cannot deprive the SSHD of the power conferred by the Immigration Act to remove or deport the child or any other party to the proceedings although it may be something to which the SSHD should have regard when deciding whether to exercise his powers under that Act, nor will the court allow itself to be used as a means of influencing the decision of the SSHD (Re T [1994] ImmAR 368).The United Nations High Commission for Refugees (UNHCR) made clear in its guidance on the treatment of child asylum applicants that refusal of asylum should not lead to removal to the child's country of origin unless the rejecting country is sure that there will be someone to care for the child on his or her return.

This has not prevented the SSHD from refusing asylum and ELR and manifestly failing to take into account the fact that the applicant is a minor.There are presently pending a number of cases at the European Commission of de facto deportation of British citizen children where the custodial parent does not have the right of residence or stay in the UK.

The arguments before the Commission include that such action is a breach of art 3 of the ECHR: 'No one shall be subject to torture or to inhuman or degrading treatment or punishment'; and art 8: 'Everyone has the right to respect for his private and family life...no interference by a public authority with the exercise of this right except such as is...necessary...in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.'The exile of a child from the country of his or her citizenship or the removal of the child's mother and thus harsh sudden and permanent separation of the child from his mother with all the psychological consequences that this would entail constitute serious breaches (Berrehab v Netherlands [1986] ECHO 230).There is no provision in immigration rules to enable foreign nationals to enter the UK to live and look after their children who have the right of abode.

With effect from 1 October 1994, HC395 introduced a specific category purportedly to enable non-custodial parents visas to the UK to enjoy access to their children.

Entry clearance before arrival in the UK is mandatory; if refused appeal rights are exercisable from abroad.

The requirements to be met include a UK court order granting access; to be divorced or legally separated from the custodial parent; to be able to maintain and accommodate whilst in the UK without recourse to public funds or taking employment.Other than the obvious people who would be excluded from being able to comply with these rules - those who cannot afford to travel long distances frequently or to take time off work - those who have had immigration problems in the past would stand very little chance of being issued with a visa.

Furthermore, the rule does not in any way take into account the welfare of the child or the Children Act guidance.

Appeal rights mean that even if successful, any access visit is so long delayed that the benefits foreseen in the Children Act become derisory if not non existent.

Thus, in terms of the welfare of the child, the new immigration category is of no benefit unless you happen to be extremely wealthy.The practical outcome of the combination of DP/2/93, the Children Act 1989 and the ECHR means that the SSHD will intervene in residence order applications if the proceedings are considered to have been instituted to evade immigration control.

But the combination of the guidance and reference to the European Convention of Human Rights will normally be sufficient to force the SSHD seriously to reconsider deportation action.

Certainly adjudicators are amenable to such arguments and deportation appeals will frequently be successful in such cases.

Serious consideration should be given to applications to the Family Court to enable welfare issues to be canvassed.