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Re Y – What are the Local Authority’s powers to change the nationality of children in care?

In the recent case of Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, the court considered the nature of the LA’s corporate PR to make decisions relating to children in care.

Background

The proceedings concerned 2 children of Indian nationality who were born in the UK. The children were removed from their parents in 2015 and have lived in local authority foster care ever since. The LA’s original care plan was to place the children in adoptive placements, however, following difficulties in finding placements for the children, the LA made an application to discharge the placement orders in December 2018. Subsequently, the parents made an application to discharge the care orders. In the proceedings, the LA also sought to apply for British citizenship for the children.

In December 2019, HHJ Tucker discharged the placement orders but refused to discharge the care orders.

Appeal

The case then came to be heard for appeal following the parents’ appeal against the refusal to discharge the care orders. The parents also appealed against a single issue in respect of the LA’s powers to change the children’s nationalities.

Applying the dicta of King LJ in Re H (A child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, Jackson LJ outlined that s.33 Children Act “would allow a local authority to make profound and irreversible decisions about a child, up to and including consenting to the withdrawal of life-sustaining medical treatment” [13]. Of course, the Court of Appeal has held that such decisions would be of such magnitude that they should not be determined by a Local Authority without everyone who holds PR for a child having an opportunity to express their views to the court.

So, do decisions about nationality come under the same category of profound decisions as consenting to withdrawal of medical treatment?

The Court of Appeal held that decisions about a child’s immigration status will not always be of such magnitude that the LA cannot make those decisions alone. However, in cases “where a child may lose his or her original nationality… the issue is of a magnitude that cannot in my view be resolved by a local authority acting in reliance upon its general statutory powers.  In the absence of parental consent, it requires a decision of the High Court under its inherent jurisdiction” [18].

The Court further held that the issue of the children’s immigration status in this case should have been addressed within the existing care proceedings. The LA is able to take steps to regularise the children’s immigration status without making decisions about citizenship.

In deciding issues of citizenship, Jackson LJ noted that the following matters would need to be considered:

  • Firstly, the application should be made under the inherent jurisdiction, whether proceedings are ongoing or not.
  • There should be evidence before the court as to the effect on the children of gaining British citizenship, i.e. would this result in the loss of their Indian citizenship?
  • What are the disadvantages that might flow from the loss of a child’s nationality of birth?
  • Is it appropriate for the application to be made at that time, or should it be deferred until a more informed view can be expressed?

That information not being before the court, and the application not having been made under the inherent jurisdiction, the Court held that “s.33 CA 1989 does not entitle the local authority to apply for British citizenship for these children, in the face of parental opposition and where that may lead to a loss of their existing citizenship, without first obtaining approval from the High Court” [24]

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