C (A Child) (Schedule 2, Paragraph 19, Children Act 1989)

Where a child in local-authority care does not consent to living outside England and Wales, the court cannot approve placement in a residential home under paragraph 19(4) of Schedule 2 to the Children Act 1989. The words “other suitable person”, read in context, are confined to a natural person. A practical need for residential placements cannot justify a different statutory interpretation.

The question whether a child has sufficient understanding requires the judge to assess all relevant information and evidence, including the child’s intelligence, maturity and understanding of the factors relevant to the proposed placement. The issue is for the judge, and cannot be determined simply by adopting a solicitor’s opinion.

A local authority placed a young teenager, C, who was subject to a care order, in a residential home in Scotland without first obtaining the court’s approval. C’s position on consent was inconsistent, but by the relevant hearings he did not consent to living in Scotland. The local authority applied retrospectively for approval under paragraph 19 of Schedule 2 to the Children Act 1989.

The first-instance judge in case LV19CO1677 withdrew interim approval and directed C’s return to England, finding that C understood the consequences of withholding consent. The local authority appealed, challenging both the approach to sufficient understanding and the construction of “other suitable person” in paragraph 19(4). The central questions were whether residential placement could satisfy that provision and whether the judge had properly assessed C’s understanding.

1. Appeal dismissed. The local authority should not have placed C in Scotland without first obtaining the court’s approval. That failure was substantive, not merely technical (para [39]).
2. Paragraph 19(4) permits approval without the child’s consent only where the child is to live with a parent, guardian, special guardian or other suitable person. Although the Interpretation Act 1978 provides that “person” includes a corporate or unincorporated body, the statutory context points to natural persons. The listed relationships are natural persons, and a child living in a residential home is not thereby living with the company or unincorporated body which owns or operates it (para [40]).
3. The court therefore cannot approve, under paragraph 19(4), the placement outside England and Wales of a child who does not consent in a residential home, whether in Scotland or elsewhere, regardless of whether the child has sufficient understanding (para [41]).
4. The court gave general guidance on sufficient understanding. The judge must consider all relevant information and evidence and assess the child’s intelligence, maturity and understanding of the factors relevant to the proposed placement outside England and Wales. The investigation need not be extensive, but the decision is for the judge and cannot rest simply on a solicitor’s opinion. The social worker’s evidence also required engagement, and it might have been preferable to await the Guardian’s ordered analysis (paras [43]-[44]).
5. The court declined to determine whether “other suitable person” was subject to any further limitation concerning parental or legal responsibility. It noted the need to address at an early stage the legal issues governing overseas placements. The possible legislative gap concerning residential placements in Scotland was referred to the President of the Family Division (paras [42], [45]).

• Court of Appeal (Civil Division): The local authority appealed orders made on 5 and 9 July 2019 by HHJ Greensmith in the Liverpool Civil and Family Court. The appeal was dismissed, and the court held that paragraph 19(4) could not authorise the proposed residential placement (paras [1], [9], [45]-[47]).