David Josty discusses a recent Court of Appeal ruling on the scope of a local authority's decision making in a relation to the national identity of a child in care.
Through its judgment in Re Y (Children in Care: Change of Nationality)  EWCA Civ 1038, the Court of Appeal sends out a clear message that where a local authority wishes to apply for British citizenship for a child in their care in circumstances where the birth parents object and where the consequence of British citizenship being conferred is that the child may lose his/her National Citizenship of origin, the issue must first be the subject of an application under the inherent jurisdiction pursuant to s.100 Children Act 1989 which, if the jurisdiction of the High Court is invoked, should then be referred to a judge of the Family Division or a judge sitting as a deputy judge of the High Court under s.9 Senior Courts Act 1981. The approval of the High Court was necessary before the local authority makes the proposed application for British citizenship for the child.
The appellant father successfully challenged the proposed actions of Birmingham Children’s Trust (BCT). A discrete issue within the appeal and the only ground upon which permission to appeal had been granted focused on the local authority’s powers in relation to making an application for change of citizenship for the children.
The subject children are 11 and 9. Born in the UK to Indian parents, the children are both Indian nationals. Neither parent was successful in obtaining leave to remain in the UK. The mother left the UK in 2015 and now resides in Singapore. The father remains in the UK, albeit, his immigration status remains unsettled. The children have been in the care of the local authority since 2015. Following an unsuccessful search for adoptive parents, in December 2018, BCT applied for discharge of placement orders. The parents cross applied for discharge of care orders. During the proceedings in the lower court, BCT stated that an application would be made by BCT to the Home Office for British citizenship for the children. This was further endorsed upon a case management order as being an issue in the case. BCT indicated to the lower court that it was understood that in the event that British citizenship was granted, the children would lose their Indian citizenship. The 2018 proceedings concluded in December 2019 with the court approving BCT’s updated care plans for the children of long-term foster care. Notably, the final care plans did not include reference to the proposed change of citizenship. The judgment of HHJ Tucker was silent as to the local authority’s proposed application for change of citizenship for the children.
Before the Court of Appeal, BCT relied upon statutory provision under s.33 CA 1989 in advancing the position that there was no requirement for an application to be made to the High Court for approval prior to making an application for British citizenship for the subject children.
BCT invited the court to find that:
(1) Such applications were akin to routine vaccination.
(2) As long as the local authority had consulted with the parents, it could act to take the necessary steps to make the application for British citizenship and that the remedy for dissenting parents is to take legal action themselves against the local authority (through seeking an injunction under the Human Rights Act 1998 or to bring judicial review proceedings).
(3) The local authority is prevented from seeking a judicial ruling by the terms of s.100 CA 1989.
In delivering the lead judgment and rejecting the arguments advanced by BCT, Peter Jackson LJ observed at paragraph 23 that:
(1) Characterising the proposed change of citizenship as being akin to a routine vaccination is misplaced. Such a change ‘is a momentous step with profound and enduring consequences that requires the most careful consideration’.
(2) For many parents and particularly those whose immigration status is insecure, the remedies proposed by the local authority will not be effective. The parents would not have legal representation and may not have either the knowledge or means to seek injunctive relief or judicial review. The children also have a central interest. The absence of proceedings would mean that their views are not legally represented.
(3) The provisions of s.100 (3) and (4) CA 1989 demonstrate that there will be residual cases where the local authority’s statutory powers under s.33 are inadequate.
(4) Informed by expert advice, the timing of an application for change of citizenship should not be overlooked. It could be appropriate for such application to be deferred to a time when the children are older and able to express their own views. Even in such event, that would not prevent the local authority from making the application now to the High Court pursuant to s. 100 CA 1989 for approval of an application for change of citizenship at some later point.
(5) Where the parents oppose the proposed application for change of citizenship and where such change may lead to a loss of their existing citizenship, it is appropriate for a declaration that s.33 CA 1989 does not entitle the local authority to apply for British citizenship for the subject children without first obtaining the approval of the High Court. The court made such declaration.
Led by Harish Salve QC of Blackstone Chambers, instructed by Joseph Kosky of Messrs. Greenwood GRM LLP, David acted on behalf of the Appellant Father on a pro bono basis