Re Y (Children in Care: Change of Nationality)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Peter Jackson,Lord Justice McCombe |
| Judgment Date | 06 August 2020 |
| Neutral Citation | [2020] EWCA Civ 1038 |
| Date | 06 August 2020 |
| Docket Number | Case No: B4/2020/0047 & 0093 |
| Year | 2020 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1038
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM FAMILY COURT
Her Honour Judge Tucker
BM800/2019 & BM801/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice King
and
Lord Justice Peter Jackson
Case No: B4/2020/0047 & 0093
Harish Salve QC and David Josty (instructed by Greenwood GRM LLP) for the Appellant Father
The Appellant Mother appeared with her McKenzie Friend Ms Rao
Dorian Day and Matiss Krumins (instructed by Birmingham Children's Trust) for the Respondent Local Authority
Joanna Chadwick (instructed by Cafcass) for the Respondent Children by their Children's Guardian
Hearing date: 21 July 2020
Approved Judgment
Introduction
This appeal raises the question of whether a local authority has the statutory power to take steps to change the nationality of a child in its care against the wishes of the child's parents, or whether it must first seek the approval of the court.
The question has arisen in proceedings concerning two children, now aged 11 and 9. They are Indian nationals who were born in the United Kingdom. Their parents, who came to this country in about 2004, were unsuccessful in obtaining leave to remain. In August 2015, for reasons which it is not now necessary to describe, the children were removed from their parents and placed in a foster home where they have lived ever since. Contact with the parents has not taken place since that time. The mother left the UK in November 2015 while pregnant and now lives in Singapore. The father has remained in England, but his antagonism towards the local authority has made contact unachievable. In the course of a complex set of proceedings, the children became the subject of placement orders. However, the search for adoptive parents was not successful and in December 2018 the local authority applied to discharge the placement orders. The parents responded with an application to discharge the underlying care orders in order to secure the children's return to their care or to the care of family members in India or Singapore. Those proceedings were heard by Her Honour Judge Tucker. By an order made on 19 December 2019, she discharged the placement orders but refused to discharge the care orders. The consequence is that the plan is for the children to remain in long-term foster care for the remainder of their childhoods. During the course of the proceedings, the local authority stated that it would seek to secure the children's immigration status by making applications for British citizenship, which would have the effect of removing their Indian nationality.
The parents applied on a wide range of grounds for permission to appeal from the refusal of their application for the discharge of the care orders. I refused permission except in relation to the single issue of the local authority's powers in relation to a change of nationality.
The hearing before the judge was a challenging one for everyone. The parents were unrepresented and interpreters were required. The father was in court, while the mother appeared by video link from Singapore with the assistance of Ms Rao, a legally qualified ‘McKenzie friend’ based in Delhi, who has also assisted her on this appeal. At the end of the proceedings, the judge gave an ex tempore judgment. I mention these features as being relevant to the court's treatment of the nationality issue.
The documentation contains these relevant extracts:
(1) On 12 February 2019, the court made a standard order in Form EX 660 requiring the Home Office to provide information about the immigration status of the family members. On 5 April 2019, the Home Office replied, setting out the history and stating that the father and children had no valid leave to remain in the United Kingdom.
(2) The status of the children as Indian nationals was reflected in the interest that the Indian High Commission took in the proceedings, which extended to a solicitor and consular official attending some of the earlier hearings.
(3) In her final analysis of 1 May 2019, the Children's Guardian wrote:
“I would highlight the need for the LA to make Citizenship applications for the children when they become of age to do so.”
(4) The social worker filed a statement on 30 July 2019 that included this paragraph:
“Enquiries have been made with the Children's Society in relation to [the children]'s immigration status and the process of making an application. The advice received from the Immigration Solicitor is that [the children] are Indian Nationality by default. It is the intention of Birmingham Children's Trust to seek British citizenship for the children and… the legal advice obtained is 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.”
(5) The father filed a statement on 14 August 2019, in which he asserted that the local authority had no power in law to grant or even to apply for British citizenship for his children.
(6) An order made on 10 September 2019 identified the “key issues” in the proceedings. These were (a): whether the placement orders should be discharged, (b) whether the children should remain in the care of the local authority or be placed in the care of the parents or family members, (c) whether an order authorising the local authority to withhold contact should be made; and “(d) “Whether the children should be made British citizens” – meaning, whether the local authority should make an application for citizenship.
(7) Despite this, the final care plans dated 7 November 2019 made no reference to the children's immigration status or to the issue of citizenship.
(8) On 26 November 2019, written closing submissions on behalf of the local authority stated that the local authority would make an application for the children to obtain British citizenship.
(9) On 26 November 2019, written submissions on behalf of the Guardian stated that the children are entitled to British citizenship and that without it they would be liable to deportation once they reach the age of 18. The local authority was described as taking active, although somewhat slow, steps to progress their applications.
(10) On 26 November 2019, written submissions on behalf of the mother strongly opposed the obtaining of British citizenship, describing it as a means of frustrating the children's placement with family in India by depriving them of Indian citizenship.
(11) In her judgment on 19 December 2019, delivered orally through interpreters, the judge considered the issue of the children's future placement at appropriate length. She specifically addressed questions that had arisen about language lessons and religious education and that these should be included in amended care plans. She stated that she approved the local authority's plan for long-term foster care, but she did not refer at all to the issue of the children's immigration status or their nationality.
That represents the whole of the consideration that was given to this subject during the proceedings.
The legal framework
Nationality
Article 15 of the United Nations Universal Declaration of Human Rights (1948) declares that every person has the right to a nationality. Citizenship was memorably described by the political theorist Hannah Arendt as “the right to have rights”, because it is through membership of a nation state that a person acquires and exercises legal rights. In addition to the practical benefits conferred by citizenship, a person's nationality may be a matter of profound psychological importance to them. Article 8.1 of the United Nations Convention on the Rights of the Child (1989) emphasises that nationality is part of one's identity:
“States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Despite having been the subject of placement orders with a care plan for adoption, these children remain members of their birth family. On behalf of the local authority, Mr Dorian Day did not pursue a submission that the previous placement orders somehow made a change of nationality a matter of lesser significance.
Care plans
Care plans were put on a statutory footing by the Adoption and Children Act 2002. Section 31A Children Act 1989 (‘CA 1989’) provides that where an application is made on which a care order might be made, the local authority must prepare a care plan for the future care of the child, giving information prescribed in regulations, now the Care Planning, Placement and Case Review (England) Regulations 2010. Regulation 5 (a) and (b) provides that the care plan must include the long-term plans for the child, including the arrangements made to meet the child's needs in respect of health, education, emotional and behavioural development, identity (with particular regard to the child's religious persuasion, racial origin and cultural and linguistic background), family and social relationships, social presentation and self-care skills.
Section 31 (3A) CA 1989 reads as follows:
“(3A) A court deciding whether to make a care order—
(a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but
(b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).
(3B) For the purposes of subsection (3A), the...
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Warwickshire County Council v ML
...is not exercised.” 51 Most recently, the Court of Appeal considered the operation of s.33(3) of the Children Act 1989 in Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038. In that case, the Court of Appeal was required to decide whether the statutory power conferred upon ......