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By Kellina Gannon, Paralegal, Lewis Nedas Law

The recent case of Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, made headlines for highlighting local authorities’ failure to obtain the courts permission to change the immigration status of children in their care contrary to the wishes of the biological parents. The Court of Appeal made a clear statement that Court approval is required before a proposed application for British citizenship is made pursuant to s.100 Children Act 1989 (CA Act 1989) where the biological parents oppose the application and also commented on the practical application of local authorities exercising parental responsibility pursuant to s.33(3)(b) CA Act 1989.

There are currently an estimated 100,000 children in London alone who do not have the immigration status to stay due to lack of documentation. Without the relevant documentation children can be denied access to basic services such as healthcare and higher education despite being born in the UK. In this case, the children 9 and 11, were born in the UK but Indian Nationals. Their parents were unsuccessful in their application for leave to remain in the UK and as a result the mother moved to Singapore in 2015. Although the father currently resides in the UK, his immigration status is still not confirmed and the children went into care in 2015 with Birmingham’s Children’s Trust (BCT). These proceedings were initiated after an application to discharge a placement order by BCT was made. During the proceedings the court became aware of the BCT’s intention to make an application for citizenship to the Home Office for both children to secure their immigration status.

The parents appealed the decision to discharge the care order, and the court allowed the appeal only on the basis that the local authority should have a submitted an updated s.31A care plan which includes their decision to apply to the Home Office for citizenship. On Appeal the local authority sought to use s.33(3)(b) CA 1989 to override the parents’ wishes to apply for citizenship for the two children. The local authority relied on two main arguments to advance their position. Firstly, the statutory powers under s.33 CA 1989 providing parental responsibility, and inviting the court to find that the application should be seen as akin to a routine vaccination and secondly, that having consulted with the parents, they could apply for British Citizenship as the parents may remedy the situation by seeking an injunction under the Human Rights Act 1998. On a literal interpretation of s.33, it would seem to authorise local authorities to make irreversible decisions such as the withdraw of life-sustaining medical treatment or in this case apply for British Citizenship for children in care. However, case law has long since recognised that certain decisions are of such a magnitude that parental wishes should not be overridden by local authorise power under s.33(3)(b). The court in this matter concluded that such action would be a disproportionate interference with the family’s rights as the effect of securing the children’s immigration status was at the cost of losing their original nationality, Indian.

With the potential for the children to lose their nationality of birth and the application being made contrary to the wishes of the parents, the High Court stated that an application to the court was needed first and foremost “for the protection of the rights of children and of other holders of parent’s responsibility” as Jackson LJ noted (at para 13). The decision reflects the courts recognition of the ‘profound and enduring consequences’ of stripping children of their Indian Nationality, contrary to the wishes and view of their parents’(at para 13). The court set out in their judgment that the lack of application to the court would bare the children from an opportunity to have their views considered by the court in relation to obtaining British Citizenship. The court went as far to comment that it may be appropriate in certain circumstances to make an application to the High Court prior to the application for citizenship in keeping with s.100 of the Children Act 1989 but delay its date of effect until a time when the children are older and able to express their opinions (at para 23(1)).

Summary

This judgment clearly sets out the limits of parental responsibility that s.33(3)(b) CA 1989 provide local authorities in making decisions with ‘profound and irreversible effects’ (at para 13). Lady Justice King succinctly puts it in the case of Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, that the remit of s.33(3)(b) in terms of parental responsibility for local authorities exercising ‘its parental responsibility is unlimited provided that it is acting in order to safeguard or promote the welfare of the child in its care’. In Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, the court found this not to be the case.

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