19
(1)
A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2)
A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.
(3)
The court shall not give its approval under sub-paragraph (1) unless it is satisfied that—
(a)
living outside England and Wales would be in the child’s best interests;
(b)
suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;
(c)
the child has consented to living in that country; and
(d)
every person who has parental responsibility for the child has consented to his living in that country.
(4)
Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, special guardian, or other suitable person.
(5)
Where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person—
(a)
cannot be found;
(b)
is incapable of consenting; or
(c)
is withholding his consent unreasonably.
(6)
Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.
(7)
Where a court decides to give its approval under this paragraph it may order that its decision is not to have effect during the appeal period.
(8)
In sub-paragraph (7) “the appeal period” means—
(a)
where an appeal is made against the decision, the period between the making of the decision and the determination of the appeal; and
(b)
otherwise, the period during which an appeal may be made against the decision.
(9)
This paragraph does not apply —
(a)
to a local authority placing a child in secure accommodation in Scotland under section 25, or
(b)
to a local authority placing a child for adoption with prospective adopters.
Cases considering Schedule 2, paragraph 19 20
[2019] EWCA Civ 1714 · 17 October 2019Disapplies
Paragraph 19 governs arrangements by which children looked after by local authorities may live outside England and Wales. The court applied its approval and consent structure to the proposed Scottish placement. (see paras [2]-[4], [27]-[28])
Paragraph 19(1) requires court approval before a local authority arranges or assists in arranging for a child in its care to live outside England and Wales. The court treated failure to obtain approval before the Scottish placement as a substantive breach. (see paras [2], [39])
Paragraph 19(3) sets the conditions for court approval, including the child’s consent. The judgment’s construction of paragraph 19(4) operated as an exception to the consent requirement in paragraph 19(3)(c), subject also to the statutory conditions. (see paras [2]-[4], [28])
Paragraph 19(3)(c) requires the court to be satisfied that the child has consented to living outside England and Wales. The court treated paragraph 19(4) as permitting that requirement to be disregarded only on its own terms, which did not extend to a non-consenting child placed in a residential home. (see paras [2]-[4], [41])
Paragraph 19(3)(d) requires the consent of every person with parental responsibility. The judgment identified this as a separate statutory condition and noted that paragraph 19(5) may permit it to be disregarded in specified circumstances. (see para [28])
Paragraph 19(4) permits approval without the child’s consent only where the child lacks sufficient understanding and is to live with a parent, guardian, special guardian or other suitable person. The last category is confined to a natural person and cannot include a residential home or the corporate body operating it. (see paras [3]-[4], [40]-[41], [43]-[44])
Paragraph 19(5) permits the court to disregard a person’s missing consent where the person cannot be found, is incapable of consenting or withholds consent unreasonably. The judgment referred to these statutory exceptions when explaining the consent structure of paragraph 19. (see paras [28], [32])
Paragraph 19(6) provides that section 85 of the Adoption and Children Act 2002 does not apply where court approval is given under paragraph 19. The judgment stated this as part of the statutory framework without construing it further. (see para [28])
Paragraph 19(9) sets out exclusions from the paragraph 19 regime, including secure accommodation in Scotland and placement for adoption. The court considered the secure-accommodation exclusion in explaining the statutory context. (see para [28])
Paragraph 19(9)(a) excludes a local authority placing a child in secure accommodation in Scotland under section 25 from paragraph 19. The judgment explained that this exception was inserted following amendment of section 25 to enable such placements pursuant to an order made by an English or Welsh court. (see para [28])
Paragraph 19(9)(b) excludes a local authority placing a child for adoption with prospective adopters from paragraph 19. The judgment stated the exclusion as part of the statutory framework but did not apply it to the present placement. (see para [28])
[2009] EWCA Civ 41 · 5 February 2009Disapplies
Paragraph 19 authorises court-approved arrangements for a child in care to live outside England and Wales. It lawfully covered a temporary overseas placement for assessment under a care plan in which adoption was only a possible outcome. (see paras [73]-[77]; [95]-[98])
The court held that the approval power in paragraph 19(1) was available for the proposed temporary United States assessment placement. (see paras [73]-[77]; [95])
Paragraph 19(6) excludes section 85 where a child is to live abroad with court approval. It supported the conclusion that the approved temporary arrangement was not prohibited by the restriction on removal. (see paras [39]-[40]; [95]-[98])
Paragraph 19 does not apply to a local authority placing a child for adoption. The proposed temporary assessment visit was not such a placement, although adoption might later follow. (see paras [74]-[77]; [96]-[98])
[2004] EWCA Civ 515 · 28 April 2004Limits
Paragraph 19 was interpreted as interacting with section 56 without generally disapplying it. Its internal distinction between court-approved care placements and other looked-after children was central to the statutory analysis. (see paras [60]-[61]; [81]-[87])
Paragraph 19(1) was interpreted as requiring court approval for a local authority to arrange for a child in its care to live abroad. Paragraph 19(6) expressly disapplies section 56 in that situation. (see paras [61]; [82]-[83])
Paragraph 19(2) was held not to impliedly disapply section 56. Approval by persons with parental responsibility did not replace the separate requirement for prior court authority under section 56. (see paras [81]-[87]; [122])
Cited only.
Cited only.
Cited only.
Paragraph 19(6) was interpreted as expressly disapplying section 56 only where a child’s living abroad has the court’s approval under paragraph 19(1). That wording supported the conclusion that paragraph 19(2) does not disapply section 56 by implication. (see paras [61]; [82]-[83])
Cited only.
Cited only.
What each judgment says about Schedule 2, paragraph 19 is in the case-law panel in the full Act.