46. In paras 49–59 of his judgment Wilson J gave cogent reasons why the Convention rights at least under Article 8 of all of the child, Mrs M and Mr M are in issue in this case. All of those rights would be likely to be seriously affected if all that Islington could do were to exercise its powers under the Regulations, with the effects summarised in para 40 above. First, Mrs M is adamant that she will not leave the UK. Absent removal directions, she cannot be forced to do so; and since, as we have seen, Islington cannot fund her travel arrangements under Schedule 3 it is difficult to see how a destitute woman could leave, let alone find her way back to Guyana, even if she wanted to do so. Islington made it clear in its letter of 21 March 2003 that that would raise ‘a real prospect’ of the child being taken into care. I for my part would find it difficult not to see an offer of tickets with an alternative of no accommodation (made not for social reasons but in an attempt to enforce immigration control other than by the issuing of removal directions) as an unjustifiable interference with the Article 8 rights both of Mrs M and of the child. Second, as the judge pointed out, whilst Mrs M and the child may be able to maintain family life in Guyana, if the object of removing them there succeeds, there has to be substantial certainty on that point before removal can confidently be said not to raise issues under Article 8. Third, it would be quite unreasonable to expect Mr M, settled in the United Kingdom and separated from Mrs M, to follow her to Guyana. Depending on the strength of the bond between Mr M and the child, the Article 8 rights of both of them would be threatened by the prospect of the child’s removal to Guyana.

47. While this would be in the first instance a matter for Islington, it might have found it difficult not to conclude that, on any view of Mrs M’s possible reaction, the limitation of its powers to those under the Regulations will involve interference with the parties’ Convention rights. I should also make plain that, in assessing any future decision that Islington might have made, the criterion would not simply be that of Wednesbury unreasonableness. The test of necessity under para 3 of Schedule 3 imposes a condition precedent to the exercise of a statutory function, under the (restored) Children Act powers. That test must be applied according to objective criteria, which the court retains the power to review.

49. Islington would have to bear three considerations in mind before it could lawfully discharge its Children Act duty by an offer of tickets rather than by providing support, including accommodation, in the United Kingdom. First, it would have to be confident that the child will cease to be ‘in need’ if removed to Guyana. Wilson J, who has unrivalled experience in these matters, pointed to the detailed and circumstantial enquiry needed in this case, none of which appears to have taken place. Second, the various parties’ Convention rights must be respected in any action taken under the Children Act, just as they are relevant to putative action under the Regulations. The considerations set out in para 46 above remain directly in point. Here again, because what is in issue is the state’s positive obligation under Article 8 of the Convention to protect family life (see for instance Marckx v Belgium Case 6833/74 at para 31), Islington would have to act in the light of that obligation, and not simply reach a decision that is not Wednesbury unreasonable. Third, Islington would have to bear in mind the implications of seeking to remove a British citizen from the United Kingdom, as indicated in para 30 above.