Re Y (Children in care: Change of Nationality) [2020] EWCA Civ 1038

This case addresses the somewhat esoteric, but important issue of whether a local authority requires the consent of the court to apply for British Citizenship on behalf of children in their care, where the parents do not consent.

The court was concerned with two children, aged 11 and 9. The children and their parents were Indian nationals. The children had been removed and placed in foster care and, in due course, were made the subject of final care and placement orders. No adoptive placement was found, and the care plan therefore reverted to long-term foster care. Neither parent was having contact with the children. The local authority wished to apply on the children’s behalf for British Citizenship to prevent them being deported when they attained the age of 18.

Significantly in this case, the effect of British Citizenship being granted to the children would have the effect of bringing to an end their Indian nationality. That brought with it consequences, such as a change to succession rights.

The court recognised that a change of citizenship in these circumstances would have a profound effect on the children that would endure throughout their lives. It went well beyond the issues raised by vaccination which the local authority had submitted it was equivalent to.

Jackson LJ, who gives the lead judgment, contrasted this with the situation where a local authority wishes to apply settled status or for citizenship in the case of a child who is able to maintain dual nationality. He observes that, in either situation, the children are gaining a benefit and losing nothing.

He draws attention again to the fact that a literal reading of Section 33 of the Children Act 1989 would appear to allow a local authority to make profound and irreversible decisions about a child, up to and including consent to the withdrawal of life-sustaining medical treatment. Those of us practising in this area will know that it has long been held that, for the protection of the rights of children and holders of parental responsibility, certain decisions are regarded as being of such magnitude that they should not be determined by a local authority without all of those holding parental responsibility having an opportunity to express their views to a court. The basis for this is that the use of statutory powers in such cases is a disproportionate interference with the rights of family members. The categories of such cases are not closed.

The court concludes that, in the absence of parental consent, this issue requires a decision of the High Court under its inherent jurisdiction. This is so whether the issue arises within or outside proceedings.

A further word to the wise. The court noted with concern that, despite the children having been in care for several years, no effective steps had been taken to regularise their immigration position. As the court pointed out, this placed the children at a potential disadvantage in not being able to travel for such things as school trips.

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1038.html

Sorrel Dixon