W and Re Z (EU Settled Status for Looked After Children)

A local authority with parental responsibility under a care order will ordinarily be entitled to apply for EU Settlement Scheme status for an eligible child, even where a parent objects or cannot be found. The same applies to obtaining passports or identity documents needed for that application. The authority must nevertheless consider the child’s welfare, consult relevant persons and give proper weight to the child’s wishes and feelings.

The inherent jurisdiction is reserved for exceptional cases involving consequences so profound or enduring that the authority should not act under its statutory powers. Where a foreign authority requires a court order dispensing with parental consent, alternative identity evidence should first be explored. The High Court may make such an order where the statutory conditions, including likely significant harm if relief is withheld, are satisfied.

Two local authorities applied under the inherent jurisdiction concerning four Polish children. The children were subject to care orders, and one child was also subject to a placement order. The authorities sought declarations that they could apply for EU Settlement Scheme status and passports without parental consent, together with orders dispensing with consent where required by the Polish Embassy.

The cases raised common questions concerning the interaction between the EU Settlement Scheme, parental responsibility under the Children Act 1989, placement orders under the Adoption and Children Act 2002, and the High Court’s inherent jurisdiction. The court also considered the position of accommodated children, care leavers, children in need, and lost or abandoned children.

1. Ordinary statutory route. A local authority holding parental responsibility under a care order may ordinarily apply for EUSS immigration status for an eligible EU, EEA or Swiss national child under s 33(3) of the Children Act 1989. Where a placement order is in force, the equivalent power arises under s 25 of the Adoption and Children Act 2002. Parental opposition or inability to locate a parent does not ordinarily require prior court approval.
2. The same statutory powers ordinarily permit the authority to apply for a passport or national identity document needed to support the EUSS application. A passport evidences identity and nationality; it does not alter the child’s legal status. EUSS status concerns immigration status and does not itself change nationality or citizenship.
3. The exceptional category identified in Re C (Children) [2016] EWCA Civ 374, Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664 and Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038 remains open but narrow. Court intervention is justified where the proposed act has consequences so profound or enduring, or such an impact on the child or parental Article 8 rights, that it would be wrong for the authority to override parental views under s 33.
4. In applying s 33(4) of the Children Act 1989, or the best-interests duty under the 2002 Act, the authority must determine that the application safeguards and promotes the child’s welfare or is in the child’s best interests. It must, so far as reasonably practicable, ascertain and consider the wishes and feelings of the child, parents and other relevant persons. Parental views are not determinative unless they have a real bearing on welfare.
5. Where a passport authority requires a court order dispensing with parental consent, the local authority should first ask the Home Office Settlement Resolution Centre whether existing documents or alternative evidence will suffice. Only if alternative evidence is unavailable should an inherent-jurisdiction application ordinarily be contemplated.
6. The High Court has power, subject to s 100 of the Children Act 1989, to make an order supporting the authority’s statutory powers by dispensing with parental consent to the issue of a passport or identity document. The risk that a child will become undocumented, lose security and stability, or face removal may constitute likely significant harm for s 100(4)(b).
7. The obligations to identify eligible children and provide support extend beyond children subject to care orders. They include accommodated children, placement-order children, care leavers, children in need, and lost or abandoned children. Applications must be pursued promptly and reliance should not be placed on the possibility of a late application.
8. In both cases the authorities were entitled to proceed under s 33 of the 1989 Act or s 25 of the 2002 Act. Permission was granted to invoke the inherent jurisdiction and orders were made dispensing with parental consent to the issue of Polish passports.