Y (Children In Care: Change of Nationality)

A local authority’s parental responsibility under section 33 of the Children Act 1989 does not permit it to change a child’s nationality unilaterally where parental consent is absent and the change may cause loss of existing nationality. Such a decision has profound and enduring consequences and requires approval under the High Court’s inherent jurisdiction, whether the issue arises within or outside existing care proceedings. Immigration status can ordinarily be regularised under the authority’s statutory powers where that does not involve changing nationality. The care plan must identify and the court must consider nationality as part of the child’s permanence arrangements. Any application requires evidence on alternatives, legal consequences and timing, including the child’s ability to express an informed view.

Two Indian-national children, born in the United Kingdom and long-term fostered under care orders, were to remain in foster care after the Family Court discharged placement orders but refused to discharge care orders. The local authority proposed applications for British citizenship, which might result in loss of Indian nationality. The parents opposed that course. The issue was not addressed in the care plans or in the judge’s December 2019 judgment. Permission to appeal was granted only on whether the local authority could take that step under its parental responsibility without prior court approval.

The Court of Appeal, with Lord Justice McCombe and Lady Justice King agreeing with the judgment of Lord Justice Peter Jackson, dismissed the appeals but granted a declaration concerning the local authority’s powers.

1. Care planning. Under section 31A and section 31(3A) of the Children Act 1989, the court must consider the permanence provisions of an up-to-date care plan. The plan must address the child’s long-term arrangements and identity needs. The proposed citizenship issue was a permanence provision and should have been addressed expressly.
2. Limits of parental responsibility. Although section 33(3)(b) gives a local authority broad power to exercise parental responsibility, that power is not unlimited in practice. Decisions of such magnitude that they have profound or enduring consequences for the child cannot be made unilaterally where they override the wishes of another person with parental responsibility. The approach in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 was applied. The example of Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 illustrated that the category is not confined to medical treatment.
3. Nationality. A change of nationality which may cause the loss of a child’s existing nationality is a matter of such magnitude that, without parental consent, it requires approval under the High Court’s inherent jurisdiction. This applies whether the issue arises within or outside existing care proceedings.
4. Procedure and evidence. Immigration status, short of citizenship, could and should have been regularised within the existing proceedings under section 33 powers. An application to change nationality would require evidence about available alternatives, the relevant UK and Indian law, the consequences of losing the existing nationality and the appropriate timing. The court noted that the application might properly be deferred until the children could express a more informed view. A local authority would require leave under section 100(3) and (4) of the Children Act 1989 to invoke the inherent jurisdiction.
5. Order. The care orders remained undisturbed. It was declared that section 33 of the Children Act 1989 did not entitle the local authority to apply for British citizenship, in the face of parental opposition and where that might lead to loss of existing citizenship, without prior High Court approval.

• Court of Appeal (Civil Division): Permission to appeal was granted only on the issue of the local authority’s power to apply for a change of nationality. The appeals were dismissed, with a declaration that prior High Court approval was required.
• Birmingham Family Court: On 19 December 2019, Her Honour Judge Tucker discharged the placement orders but refused to discharge the care orders. The judgment did not address the children’s immigration status or nationality.