Warwickshire County Council v ML
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] EWHC 783 (Fam) |
| Court | Family Division |
| Docket Number | Case No: CV20P01997 and NN20C00122 |
| Date | 31 March 2021 |
[2021] EWHC 783 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice MacDonald
Case No: CV20P01997 and NN20C00122
and
and
(By their Children's Guardian)
and
and
and
and
Case No. CV20P01997
Mr Simon Miller (instructed by Warwickshire County Council) for the Applicant
The First Respondent appeared in person
The Second Respondent appeared in person
Mr Jason Green (instructed by Johnson & Gaunt) for the Third and Fourth Respondents
Case No. NN20C00122
Mr Edward Devereux QC and Mr Simon Miller (instructed by Northamptonshire County Council) for the Applicant
The First Respondent did not appear and was not represented
The Second Respondent did not appear and was not represented
Mr Henry Setright QC and Mr Greg Davies (instructed by Bourne Martell Turner Coulston) for the Third and Fourth Respondents
Mr Alan Payne QC (instructed by the Government Legal Department) for the First and Second Intervenor
Hearing dates: 25 March 2021 (CV20P01997) and 26 March 2021 (NN20C00122)
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
The applications made under the inherent jurisdiction of the High Court in the two cases with which this judgment is concerned each raise the following questions in the context of the operation of the United Kingdom's European Union Settlement Scheme (hereafter “the EUSS”) with respect to children who are the subject of care orders made under Part IV of the Children Act 1989:
i) Where the parent or parents of an EU national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for immigration status under the EUSS or (b) cannot be located in order to ascertain whether they agree, does the local authority need the authorisation of the court to proceed with an application for immigration status under the EUSS with respect to the child, or may it proceed pursuant to the power conferred upon it by s.33(3) of the Children Act 1989.
ii) Where the parent or parents of an EU national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for passports or national identity documents to support an application for immigration status under the EUSS or (b) cannot be located in order to ascertain whether they agree, does the local authority need the authorisation of the court to proceed with an application for a passport or national identity card with respect to the child, or may it proceed pursuant to the power conferred upon it by s.33 of the Children Act 1989.
iii) Where an EU national child who has been made the subject of a care order under Part IV of the Children Act 1989 requires a passport or national identity card to be issued by the EU Member State of the child's nationality in order to progress an application under the EUSS and (a) the parent or parents of the child oppose a passport or national identity card being issued or cannot be located in order to ascertain whether they agree and (b) in such circumstances the EU Member State requires a court order before it will issue a passport or national identity card, does the court have the power make such an order and, if so, what order?
In addition to the determination of these questions, the court has been assisted by the applicant local authority in each case filing evidence regarding their respective procedures for securing immigration status under the EUSS for looked after children and care leavers who are not the subject of care orders under Part IV of the Children Act 1989. Further, both the Secretary of State for the Home Department and the Secretary of State for Education accepted the invitation of the court to intervene in case number NN20C00122 in order to assist the court with requirements of, and the operation of the EUSS as it relates to looked after children. The court is grateful to the Secretaries of State for the assistance they have rendered to the court in this regard by way of comprehensive written submissions from Mr Payne of Queen's Counsel. Within this context, and at the invitation of the parties, this judgment also deals more generally with the position with regard to the EUSS of children looked after by the local authority who are not the subject of care orders.
Given that both cases before the court raise the same or similar questions, I heard them sequentially in the week commencing 22 March 2021 (a third case raising the same issues, and originally listed in the series, having settled). With the agreement of the parties in each case, I now hand down a single reserved judgment dealing with the relevant law and guidance and its application to the facts in each case. The judgment will be anonymised as appropriate when distributed to the parties in each of the cases and then anonymised in toto for publication on BAILII.
Finally, by way of introduction, it is important at the outset to note that between 10 July to 26 November 2020 the Home Office undertook a survey of local authorities in England, Wales and Scotland and of health and social care trusts in Northern Ireland to provide an estimate of the numbers of looked-after children and care leavers eligible to apply to the EUSS. The results of that survey indicated that the total number of looked after children and care leavers eligible to apply under the Scheme was 3,300, of which 2,080 were the subject of an interim care order, a care order or a placement order. As at 26 November 2020 the survey indicated that of those 3,300 eligible children and young people, 1,520 applications had been received. Of the 2,080 eligible children and young people in respect of whom there was in force an interim care order, a care order or a placement order, 890 had had an application to the Scheme made on their behalf by a local authority. The court was told that the Home Office is now repeating this survey in order to ascertain what further progress has been made in respect of applications to the EUSS for looked after children and other children with whom local authorities are concerned who are eligible to apply under the scheme.
Within this context, and where applications under the EUSS must be made before the deadline of 30 June 2021, it is essential that all local authorities understand and discharge the obligations towards eligible children in this regard in accordance with the law and guidance detailed in this judgment, so as to ensure that the entitlement of those children to remain in this jurisdiction, forming as it does a cardinal element of their stability, security and safety, is not jeopardised. As Holman J noted in SM and TM and JD v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) at [51], it is unacceptable to leave children in a position of ‘limbo’ with respect to their immigration position as they develop and acquire a growing awareness of their circumstances. Rather, the necessary application must be dealt with in a timely manner that ensures the relevant deadline is met and minimises uncertainty for the subject child. Within this context, the guidance issued to local authorities by the Home Office in April 2020 and entitled EU Settlement Scheme: Looked after children and care leaves: local authority and health a social care trust guidance (hereafter “the local authority guidance”) highlights the following:
“In accordance with existing statutory duties the local authority or health and social care trust must, in all circumstances, seek to secure the best possible outcomes for the looked after child, safeguarding and promoting their best interests and acting as a good corporate parent to enable each looked after child to achieve their full potential in life. Addressing immigration issues early as part of any assessment and care plan, offering support and if necessary, seeking legal advice about the appropriate action based on the circumstances of the individual looked after child is an important part of these responsibilities.”
BACKGROUND
The background to the two cases with which the court is concerned can be stated shortly for the purposes of determining the applications currently before this court in each case.
CV20P01997
In this first matter, the court is concerned with the welfare of PW, born in 2009 and now aged 11 and NW, born in 2011 and now aged 9. PW and NW are Polish nationals. Warwickshire County Council applies for orders under the inherent jurisdiction consenting to the issue by the Polish Embassy of new passports for PW and NW and permitting the local authority to apply for EU settled status under the Scheme for each of the children. Warwickshire is represented by Mr Simon Miller of counsel. The mother of the children is ML. The mother appears before the court in person. The father of the children is TW. The father also appears before the court in person. The children are represented by Mr Jason Green of counsel through their Children's Guardian, Fiona Dean.
The family settled in Warwickshire at the end of 2016, having...
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