Re Y (Children in Care: Change of Nationality) – Family Law Week case summary

August 24, 2020

A father appealed the refusal of his and the mother’s applications for discharge of care orders. The court had refused permission on the more substantive grounds in relation to the discharge of the care order itself, but the court held the local authority should have prepared updated s 31A care plans in respect of the parents’ application to discharge the care orders , which plans should have set out, inter alia, the local authority’s plans in respect of citizenship, being a permanency provision the court had to consider, which the final care plans filed failed to address.

The court considered the nature of local authority parental responsibility under section 33 of the Children Act 1989, which, on its face, seems to permit a local authority to make profound and irreversible decisions regarding children in care. However, case law had shown that, as per King LJ in Re H [2020] EWCA Civ 664:-

‘…local authorities and the courts have for many years been acutely aware that some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) to override the wishes or views of a parent. Such decisions have chiefly related to serious medical treatment, although in Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 (Re C), the issue related to a local authority’s desire to override a mother’s choice of forename for her children. The category of such cases is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child.’

The local authority’s broad plan in a social work statement set out advice that the children had Indian nationality, but indicating that it was the local authority’s intention to apply for British citizenship for the children, the local authority being of the view that “the process is generally straight forward given that Birmingham Children’s Trust are corporate parent for the children and hold parental responsibility to make decisions relating to their immigration.” This was a bare statement of intent without any underlying analysis. At the hearing, the court noted that there was a general understanding such a plan would have the effect of extinguishing the children’s Indian citizenship, but also noted that there was no formal evidence about that.

Read the full summary on Family Law Week.