Re C (A Child) (Schedule 2, Paragraph 19, Children Act 1989)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice King,Lord Justice Floyd |
| Judgment Date | 17 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1714 |
| Docket Number | Case No: B4/2019/1841/1842/1846 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2019 |
[2019] EWCA Civ 1714
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ GREENSMITH
LIVERPOOL CIVIL AND FAMILY COURT
LV19CO1677
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lady Justice King
and
Lord Justice Moylan
Case No: B4/2019/1841/1842/1846
Mr R Howling QC (instructed by Wirral Borough Council) for the Appellant
The Mother in Person
The Father in Person
Miss G Irving QC (instructed by Nyland and Beattie Solicitors) for the Child's Guardian
Hearing date: 8 th October 2019
Approved Judgment
Introduction:
The Local Authority appeals from the orders made by His Honour Judge Greensmith on 5 th and 9 th July 2019 by which, in essence, he refused to give the court's “approval” to the Local Authority arranging for the child C to live in Scotland in a residential home in which he had been placed.
A Local Authority may only arrange for a child in their care to live outside England and Wales with the approval of the court: paragraph 19(1), Schedule 2 to the Children Act 1989 (“the 1989 Act”). The court can only give its approval if a number of conditions are satisfied: paragraph 19(3). One of these is that the child “has consented to living in that country”.
At the date of the judge's orders, C did not consent to his being placed in Scotland. However, paragraph 19(4) provides that the court can give its approval, even though the child does not consent, if the court “is satisfied that the child does not have sufficient understanding to give or withhold his consent” and “if the child is to live in the country concerned with a parent, guardian, special guardian, or other suitable person”.
The Local Authority's appeal originally focused on the judge's approach to the first issue in paragraph 19(4), namely whether C had the requisite “sufficient understanding”. However, following the filing of a Respondent's Notice on behalf of the Guardian, the focus of the appeal became whether placement in a residential home was capable of satisfying the second condition in paragraph 19(4). In simple terms, whether the words “live in the country concerned with … a suitable person” included living in a residential home.
The Local Authority is represented by Mr Howling QC and the Guardian by Ms Irving QC, neither of whom appeared below. The father is neither represented nor present (we were told that his application for legal aid had been unsuccessful). The mother is not present or represented but has provided the court with a full written presentation of her position.
This case, therefore, raises two issues: (i) Do the words “other suitable person” enable the placement of a child subject to a care order made by a court in England and Wales in a residential home in Scotland; and (ii) Was the judge's approach to the issue of “sufficient understanding” flawed.
In summary, on (i), Ms Irving submits that the provisions of paragraph 19 do not enable the court to approve a child in the care of a Local Authority being placed in a residential home in Scotland when the child does not consent to that placement. It is her case that the words “other suitable person” mean a natural person. Mr Howling submits, relying principally on the Interpretation Act 1978, that “other suitable person” includes “persons corporate or unicorporate”.
As to the judge's approach to issue (ii), during the course of the hearing it became clear that both Mr Howling and Ms Irving effectively agreed that the judge did not adequately address this issue.
At the end of the hearing we informed the parties that the appeal would be dismissed. These are my reasons for agreeing with that decision.
Background
C is a young teenager. He was first accommodated by the Local Authority in 2017 under section 20 of the 1989 Act. Care proceedings were then commenced and a care order was made early in 2018. These proceedings were determined by a District Judge but involved the same solicitor and Guardian who are involved in the current proceedings.
C was placed in a residential home in England until March 2019 when he was placed by the Local Authority in a residential home in Scotland. I do not propose to set out the details of what had happened prior to this but they included C repeatedly absconding from his placement and the Local Authority obtaining recovery orders which were made by His Honour Judge Greensmith.
The placement in Scotland was undertaken without the court's approval having been obtained. The Local Authority sought to remedy this by making an application dated 21 st May 2019 for the court's approval. This application was supported by a statement from a social worker. This set out that C did “not want to be placed in Scotland”, although he had more recently indicated “some willingness to stay” there. The statement also raised questions about why he was saying this, including that he was considered to be “vulnerable to exploitation”.
On 23 rd May 2019, HHJ Greensmith, made an order on the papers. He made the child a party and directed that a Guardian be appointed. He also gave interim consent to C's placement in Scotland.
At the first hearing on 30 th May 2019 the judge again gave interim consent, until 5pm 9 th July 2019. He also made a number of directions including that the Guardian should provide her analysis by 4pm 4 th July 2019. A hearing was listed on 9 th July.
The mother provided a statement which set out her support for the placement in Scotland as “the best placement” for C. This also stated that C had said he was “happy being in Scotland” but didn't want to be there. In his statement the father did not agree that the placement in Scotland was in C's best interests.
C's Social Worker provided a further statement dated 27 th June 2019. This set out that C had been inconsistent about whether he consented to being in Scotland. It also contained a number of paragraphs under the heading of “sufficient understanding”. In these the Social Worker explained why he was “concerned that C does not have sufficient understanding to consider the questions put to him about his placement”. In a Report dated 2 nd July 2019, the Social Worker said that C “continues to struggle to understand risk and the consequences of his actions”.
On 27 th June 2019 the solicitor for the Guardian made an application for an urgent directions hearing. No statement was provided in support of this application which relied on the information contained in that section of Form C2 which invites “brief details (of) your reasons for making the application”. These were that C “no longer consents” to living in Scotland and that he had sufficient understanding to give or withhold his consent.
A hearing took place on 5 th July 2019. It was, understandably, a brief hearing which had been listed quickly. The judge heard submissions on behalf of the Local Authority, the mother, the father and the Guardian. The Local Authority's position was that the court should deal with C's placement at the hearing listed on 9 th July. It was submitted that this would enable the matter to be addressed in more detail including, it appears, by obtaining assistance from the Guardian who had not yet provided her analysis.
The solicitor for the Guardian told the judge that he had visited C and had left “with clear instructions that C didn't consent to the placement”. The solicitor had then been told that C was reconsidering his decision. In a subsequent telephone call with the solicitor, C said that he wanted to speak to the social worker before making his decision. After this, again in a telephone conversation, C was “adamant” that he no longer consented to his placement in Scotland. Although the solicitor used the word “instructions”, and without criticising the solicitor in any way, I would just note that C was in fact represented by his Guardian and was not instructing the solicitor directly.
The solicitor also told the judge that, in his submission, C clearly had sufficient understanding to give or withhold his consent. The solicitor made clear that, understandably, it was this assessment which had led him to make an urgent application because he was concerned that C's continued placement in Scotland was not lawful.
Both parents consented to C's placement in Scotland.
In a short judgment, the judge set out that C did not consent to his placement in Scotland and was “fully aware of the possible consequences of withdrawing his consent”. In those circumstances, he decided that he should no longer approve the placement. He discharged the order of 30 th May 2019, giving interim consent to the placement in Scotland, and indicated that he expected the Local Authority to arrange for C to be returned to England that day. The matter remained listed, “for directions”, on 9 th July 2019.
The Social Worker filed a further statement dated 8 th July 2019. He again addressed the issue of whether C had sufficient understanding and set out his reasons for concluding that C did not have sufficient understanding. These included that C had “not rationalised his decision” and that he was not able “to evaluate the risks and consequences of saying no”.
At the hearing on 9 th July, counsel for the Local Authority sought to persuade the judge to reconsider his decision on 5 th July including because the social worker had “serious concerns” about C's understanding, as set out in his evidence. The judge declined to do so largely because he accepted the Guardian's solicitor's assessment that C had the ability to make the decision not to consent and fully understood the consequences of doing so. The judge also refers to the Guardian's assessment as being to the same effect although, in this court, counsel were not sure of the source of this understanding as the...
To continue reading
Request your trial
-
South Tyneside Council v MT
...beyond those specifically covered by that judgment. 7 More recently, Moylan LJ in Re C (Schedule 2 Paragraph 19 Children Act 1989) [2019] EWCA Civ 1714 (‘ Re C’), again a case concerning an intra-UK (England/Scotland) placement of a young person, commented (at [45]) that the cross-border a......
-
Re AB (A Child) (Habeas Corpus)
...other organisation or body (ie a residential home in Scotland). “It means”, he said, “a natural person”. (See also In Re C (A Child) [2019] EWCA Civ 1714 at para.[4] and OM (A male child) [2021] NI Fam 126 at 34 The mother accepts that abused children must be protected, if she is correct a......
-
A Health and Social Care Trust and A Mother and A Father and in the matter of OM (a male child ages 10 and 1/2 years)
...or other organisation or body. It means a natural person.” [38] The next case was a decision of the Court of Appeal in re C (A child) [2019] EWCA Civ 1714, which involved a placement in a residential unit in Scotland. The court, comprising of Floyd, King and Moylan LJJ applied re X (A child......