Abstract
Change of nationality: local authority exercise of parental responsibility
Re Y (Children in Care: Change of nationality)
Court of Appeal (Civil Division), McCombe, King & Peter Jackson LLJ
6 August 2020 [2020] EWCA Civ 1038
Two children, ages now 11 and 9, were removed from their parents’ care in 2015 and final care and placement orders were made. Adoptive parents were not identified and the local authority applied to discharge the placement orders and filed a plan for long-term foster care. The children had been born in the UK to Indian parents who did not have leave to remain, and the local authority indicated that they would secure the children’s immigration status in the UK by applying for British nationality for them. India does not allow dual nationality and the effect of the children acquiring British nationality would be to deprive them of their Indian nationality. The parents strongly objected to this proposal, suggesting that it was seeking to frustrate the placement of the children with family in India. The court at first instance discharged the placement orders and refused the parents’ application for discharge of the care orders without ruling on the issue of nationality. Nationality was not mentioned in the final care plans, although the children’s guardian in her report supported the application for British citizenship to prevent the risk of deportation at age 18. The parents appealed.
Held
The Court of Appeal held that nationality was a ‘permanence provision’ that ought to be included in the final care plans and considered by the court, as required by section 31(3A) Children Act 1989. However, even if a change in citizenship had been included in the care plans, in the face of the parents’ objections, the judge could not have decided the issue in care proceedings and an application should have been made to invoke the inherent jurisdiction.
Comment
Although section 31 of the Children Act 1989 gives a local authority parental responsibility for a child subject to a care order, the statutory limitations on the exercise of this responsibility are that the local authority may not change a child’s religion, consent to the child’s adoption or appoint a guardian, and requires leave of the court to change a child’s surname or place a child outside the UK. There are also expectations that a local authority will seek the permission of the High Court under the inherent jurisdiction in some other situations, usually life or death, or life-changing medical cases (e.g. sterilisation). Recent cases include Re C (Children) [2016] EWCA Civ 374 in which the inherent jurisdiction was invoked to prevent a mother naming her daughter ‘Cyanide’ and Re H (A Child Parental Responsibility: Vaccination) [2020] EWCA Civ 664 in which the court held that the local authority could consent to routine childhood vaccinations using their parental responsibility under the care order. In this case, the court suggested that there would be no need to apply to the court if the children were able to hold dual citizenship, as they would have acquired a benefit without suffering any detriment, but losing a nationality was such a significant part of a child’s identity that the decision should only be made by the High Court in possession of all the facts and arguments.
Availability of accommodation for vulnerable children
Lancashire County Council v G (Unavailability of Secure Accommodation)
High Court (Family Division), Macdonald J
26 October 2020 [2020] EWHC 2828 (Fam)
G is a 16-year-old child who has been subject to a care order since 2010 and has been in foster care since the age of four. She has a diagnosis of PTSD and hears voices, and has been admitted to hospital 20 times this year as a result of self-harming and suicidal behaviour. She has spent time in residential units, including a specialist mental health unit, and has twice been admitted to hospital for assessment under the Mental Health Act. She has made several attempts to strangle herself and her last placement in a specialist mental health unit was withdrawn after she was arrested for setting fire to her room. At the time of the hearing she was awaiting discharge from an adult mental health ward (where she had been inappropriately placed due to lack of CAMHS beds).
The court were told that G did not meet the criteria for detention under mental health legislation and although she clearly met the section 25 criteria for secure accommodation, there were no places available. The local authority then sought a non-secure placement combined with an order under the inherent jurisdiction to deprive G of her liberty. They had been unable to identify any registered residential home anywhere in the UK that would be able to accommodate her. The only placement that was available was an unregistered location that had told the local authority they were not prepared to apply to OFSTED for registration. It was not clear why that was, it was not clear how the unit proposed to apply the regulations applicable to secure accommodation and the children’s guardian was unable to support the making of the placement as being in G’s best interests.
The court was attended by NHS England, who sent counsel to the hearing, and the Secure Welfare Co-ordination Unit (SWCU) was directed to provide a statement. The SWCU told the court that it had changed its procedures to inform local authorities of projected vacancies, not actual beds available, and that they had stopped providing the names of the units that had projected availability. This was described by the SWCU as not having affected the process in any way, although the local authority thought otherwise, as the location of a secure placement would be critical to planning for a child. The judge forbore to criticise the SWCU’s decision, although his comments make it clear that he was not impressed.
The court had two applications before it: one for a secure accommodation order and one for an order under the inherent jurisdiction for an order allowing the deprivation of G’s liberty. The court had to consider the secure accommodation order first, as section 25(4) of the Children Act 1989 obliges the court to make a secure accommodation order if the criteria are met (‘If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation….). Section 100 requires a local authority to seek leave to apply for the exercise of the court’s inherent jurisdiction, and permits the court to grant such leave only if the local authority cannot achieve the result it is seeking in any other way. If a section 25 secure accommodation order was possible, the court could not exercise their inherent jurisdiction. The court cannot make a secure accommodation order unless it is satisfied that the proposed placement is one that has been designed as secure accommodation and approved by the Secretary of State or by Scottish ministers. There was no secure placement available for consideration, so this element could not be met and a section 25 secure accommodation order could not be made, allowing the court to consider the application for exercise of the inherent jurisdiction without falling foul of section 100.
Comment
The court described the situation as one that is ‘depressingly familiar’; several similar cases have been reported over the last few months. This one stands out particularly because of the involvement of the SWCU and the fact that the proposed placement had announced that it had no intention of applying to be registered with OFSTED, as required by the President’s Guidance. Further details were being sought of their justification for this stance. In many cases the local authorities have been able to devise unregistered placements tailored to a specific child’s needs and have the court endorse their care plan as being in the child’s welfare interests. For this child, nobody was claiming that this placement was anything other than sub-optimal, but there were simply no other options available. The court had to allow the placement and the deprivation of liberty order was sought, because if they had not done so the child would have had to be placed in the community, where the assessment was that she would almost certainly cause herself significant, and possibly fatal, harm.
Interim care order: placement in Scotland
H (Interim Care: Scottish residential placement)
High Court (Family Division), Cobb J
20 October 2020 [2020] EWHC 2780 (Fam)
Henry is a 15-year-old boy with complex needs; he has a diagnosis of ADHD and possibly foetal alcohol syndrome and an unassessed autistic spectrum disorder. He was living with his father and had had very little contact with his mother since he was a baby. As he grew older, his father found it hard to manage Henry’s challenging behaviours and, in July 2019, asked the local authority to accommodate him. Henry was placed in two short-term unregulated placements while English residential units were approached. None having been identified as suitable and available, Henry was placed in a Scottish unit which provides education and therapeutic services to meet his needs. Henry is happy and settled in that unit and all parties accept that the time is not yet right to consider a return home. The local authority issued care proceedings in June 2020. The judge criticised the local authority for failing to discuss the placement with Henry’s mother, and for placing Henry in Scotland as a child accommodated under section 20 for nearly a year before bringing the matter before the court. The courts have previously identified that the placement of children in Scotland, although not an uncommon occurrence, does not have a clear statutory framework. Although this has been picked up and addressed in the case of secure placements, with an amendment to section 25 of the Children Act 1989, the position in respect of children in other residential units remains unclear.
Schedule 2, para 19 requires the court to give permission to a local authority to arrange for a child in care to live outside England and Wales, or for all people with parental responsibility to consent to a placement if a child is accommodated. Cobb J looked at the Care Planning, Placement and Case Review (England) Regulations 2010 and noted that these were written in anticipation of the possibility of placement at a distance, including outside England, and include significant safeguards for the child and parents, whether the child is subject to a care order or not. He held that Schedule 2, para 19 did not apply to interim placements – in particular, that the words ‘to live outside England and Wales’ apply only to the long-term or permanent relocation of the child.
The effect of placement in Scotland under an interim care order was considered. It was clear that the Transfer Regulations 2013 provide for the implementation of final care orders as compulsory supervision orders in Scotland, requiring the agreement of both English and Scottish local authorities and the approval of the court under Schedule 2, para 19. Expert advice from a Scottish lawyer was provided to the court and established: (i) that a child looked after by an English local authority would not be considered a looked after child in Scottish law and (ii) there was no necessity, save for ‘legal tidiness’, to make an application for any order in the Scottish courts as the placement did not interfere with the parents’ or indeed Henry’s rights. If the placement needed to deprive Henry of his liberty (which it currently does not), the local authority would need to petition the Court of Session in Scotland for the exercise of the nobile officium, the Scottish equivalent of the inherent jurisdiction.
In this case there was no conflict with the parents and the residential unit was able to provide accommodation for Henry without the need for a Scottish order, although the English interim care order conferred no powers on the unit. The court recognised, however, that there will be cases where the local authority will want to enforce their interim care order, and the potential for parallel or conflicting applications in England and Scotland will need judicial co-operation to manage. Cobb J added his voice to the calls for more capacity to place teenagers in England, and, given the current shortfall, also identified the ‘increasingly pressing need’ for a coherent legal framework for cross-border placements under interim care orders.