Re W and Re Z (EU Settled Status for Looked After Children)  EWHC 783 (Fam)
This is an interesting decision which looks closely at the ambit of section 33 of the Children Act 1989 and how local authorities may exercise PR for children subject to care orders. It concludes that there are only a small category of cases where the LA cannot proceed to ‘over rule’ parents using section 33. Applications to permit a EU national child to remain in the UK now that ‘freedom of movement’ has ended, did not fall within that category of cases that needed the court’s approval.
Judgment was handed down by Mr Justice MacDonald on 31st March 2021
This case involved 3 separate applications made by local authorities under the inherent jurisdiction of the High Court about the operation of the United Kingdom’s European Union Settlement Scheme (hereafter “the EUSS”) regarding children who were subject of care orders. Without such an application, the children’s right to remain in the jurisdiction where they were settled, could be jeopardised. The court delivered one judgment to cover all cases, as the issues and questions raised were the same.
Questions before the court
Where parents of an EU National child subject to a care order either oppose an application for their child for immigration status under the EUSS (or the application for a passport or national identity document that would allow this application to be made) or can’t be found to give their agreement, can the local authority proceed to make the application relying on section 33 (3) of the Children Act OR does it need the court’s permission?
A care order allows the local authority to share parental responsibility for a child with the parents and section 33 allows a local authority to restrict others with parental responsibility from exercising it, when it is necessary for the child’s welfare.
The court found that the local authority could make these applications under section 33 of the Children Act 1989.
If the EU national child requires a passport or other documents about identity to be issued by the EU Member State of the child’s nationality and requires a court order if the parents can’t be found or don’t agree, does this court have the power to make an order and if so what is it?
The court found that the court did have the power to make such an order under the inherent jurisdiction but the local authority should first check with the EUSS what documents would be required as it may be possible to proceed without a passport.
The court was assisted by the various local authorities providing evidence about their procedures for securing immigration status under the EUSS for looked after children who were not subject to care orders. The Secretaries of State for The Home Department and Education also accepted the court’s invitation to intervene to help with the requirements of and operation of the EUSS as it relates to looked after children. Therefore the judgement looks at the position of all looked after children, whether they are subject to a care order or not.
Background to the applications
Between July and November 2020 the Home Office surveyed local authorities to provide an estimate of the number of looked after children and care leavers who were eligible to apply to the EUSS, and found 3,300. Those subject to a care order or placement order numbered 2,080 and so far 1,520 applications had been made. The deadline for the applications is 30th June 2021 so it was clearly very important that all local authorities understood and discharged their duties towards children who are eligible to apply. Without such an application for ‘settled status’ the children’s right to remain in the country would be jeopardised. Guidance was issued by the Home Office in April 2020 highlighting that local authorities must in all circumstances seek the best possible outcomes for the looked after child and should address immigration issues as soon as possible and take legal advice as appropriate.
The father in one case involving two Polish children made his opposition very clear by emailing the court to say
“I refuse to give permission for settlement status and passports I do not want My children bonding with strangers any further I want them to be with their family ideally their Mother even though I am not a part of Her life anymore outside of being the father of My children and I would also love nothing more than to be a part of their lives even if insignificant family is very important to Me a Muslim Our values rely heavily on what parents teach their children about life and I feel like them being with non-Muslims is taking away my right as their parent to teach them right and wrong based on the teachings of our creator and also I refute all evidence that social services and community has provided that has made Me seem unfit as a parent I have tried my best and made a few mistakes but I definitely know that My mistakes don’t warrant Me being stripped of parenthood entirely.”
The local authority therefore applied for permission to invoke the inherent jurisdiction to allow it to apply for a passport for each of the children and then amended its application to include permission to apply for immigration status under the EUSS. The children’s guardian supported both applications. The Care Proceedings Unit at the Polish Embassy reassured the court that granting settled status in the UK would not have any negative impact on the children’s Polish citizenship.
The local authority wanted clarity as to whether it could make these applications under section 33 of the Children Act or whether this fell within the small group of cases where the court’s approval is needed. If the Polish Embassy required a court order, the court is able to and should make an order under the inherent jurisdiction.
THE RELEVANT LAW AND GUIDANCE
End to freedom of movement – The EU Settlement Scheme
Under the terms of the Immigration Act 1971, save for those with a right of abode, Irish citizens and those persons who are exempt from immigration control, every person requires leave to enter or to remain in the United Kingdom. Prior to 31 December 2020, EU, other European Economic Area (EEA) citizens and Swiss citizens did not require leave to enter or remain in the UK by reason of having rights of entry in accordance with the EU Treaties and the Free Movement Directive 2004/38/EU, as given effect in domestic law by the Immigration (European Economic Area) Regulations 2016. After 31stDecember, those regulations were repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, bringing to an end freedom of movement between the UK and the EU.
Part 2 of the Withdrawal Agreement between the UK and the EU, reached on 17 October 2019, sets out the provisions of the Treaty concerning citizens’ rights. EU, other EEA citizens and Swiss citizens who were resident in the UK prior to 11pm GMT on 31 December 2021 can continue to exercise their right to reside in accordance with the Free Movement Directive, provided they continue to meet the conditions of that Directive. However, pursuant to Art 18 of the Withdrawal Agreement, the UK requires EU, other EEA citizens and Swiss citizens who wish to continue to take advantage of their rights under the Withdrawal Agreement after 30 June 2021, to apply for a new immigration status in the UK. There is provision for ‘late applications’ where there are “reasonable grounds” for the failure to meet the deadline, which reasonable grounds will include “children whose parent, guardian or local authority fails to apply on their behalf.” But if an application is not made, that person becomes ‘undocumented’ which can have an impact on eligibility for benefits and services, and brings a risk that the person will be removed from the UK.
Therefore the UK set up the EUSS in March 2019 to give people permission to enter or remain in the UK. The application must be made using the prescribed application process and a valid application requires proof of identity and nationality. The Secretaries of State for the Home Department and Education argued that parental consent is not required for an application to be made on behalf of a child, as the rights from which children benefit under the Withdrawal Agreement do not depend on parental agreement. The guidance to local authorities emphasises that children’s wishes and feelings should always be considered and children should be made aware of their entitlement to independent advocacy support.
A key requirement of the application to the EUSS is proof of identity and nationality which is usually provided by a valid passport of national identity card. If the child doesn’t have these documents, then the local authority should endeavour to get one from the child’s country of origin before making the application to the EUSS. However the immigration rules have a discretion to allow alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required documentation due to circumstances beyond their control or to compelling practical or compassionate reasons. Lack of relevant documents was noted to be a serious problem in the Home Office survey of those children eligible to apply. Local authorities also have a dedicated phone line to the Home Office Settlement Resolution Centre which provides support for applicants. The Home Office Policy Equality Statement, published in November 2020, also recognises that age is a protected characteristic under the Equality Act 2010 and the impact of the EUSS on children has been carefully considered, having regard to Article 3 of the UN Convention on the Rights of the Child. Therefore caseworkers will be looking for reasons to grant applications, not refuse and should exercise discretion in favour of applicants to minimise administrative burdens.
Is an application to the EUSS something a LA can do without parental consent?
The court was clear at para 42, there are some decisions so serious that it would not be appropriate to allow the local authority to act in reliance on section 33(3)(b) of the Children Act 1989, and an application to the court needs to be made. Three Court of Appeal decisions provided guidance as to the boundary between those matters that are appropriately dealt with by a local authority pursuant to the power conferred by s.33(3)(b) of the Children Act 1989, and those decisions that are appropriately referred to the court for determination.
In Re C (Children)  EWCA Civ 374, found a local authority could not use section 33 to stop a parent registering a child with a particular name; this issue should come to court.
In Re H (A Child)(Parental Responsibility: Vaccination)  EWCA Civ 664 the Court of Appeal held that routine vaccination under the United Kingdom public health programme, in circumstances where there was no contra-indication in relation to the child in question and the link between the MMR vaccine and autism had been definitively disproved, could not be regarded as decision of such magnitude that it would be wrong for a local authority to use its power under s. 33(3)(b) to override the wishes or views of a parent
in Re Y (Children in Care: Change of Nationality)  EWCA Civ 1038, the Court of Appeal examined if the local authority was allowed under section 33 to take steps to apply for British citizenship for the subject children in the face of parental opposition and where that course may lead to a loss of their existing citizenship. The Court held that in circumstances where changing a child’s citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration, it would not appropriate for the local authority to proceed under s.33(3) of the Children Act 1989 in the face of parental opposition and where that course may lead to a loss of their existing citizenship
The Court noted what King LJ found at para 99 In Re H (A Child)(Parental Responsibility: Vaccination) that section 33 of the Children Act 1989 is not an invitation to local authorities ‘to ride roughshod over the wishes of parents whose children are in care.’ It was suggested that parents could make their own application to invoke the inherent jurisdiction if the local authority wished to vaccinate against their wishes. However, as was noted in In Re Y (Children in Care: Change of Nationality), it is often not a realistic remedy to expect parents to take legal action, particularly if their immigration status is insecure.
The Inherent Jurisdiction
The starting point is section 100 of the Children Act 1989. It cannot be used to put a child in the care of or under the supervision of a local authority and the local authority must get the court’s permission to make an application. The court will only give permission if there isn’t any other way of achieving the desired result and there is ‘reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. ‘ The courts have noted that section 100 is ‘difficult’ and ‘at first blush’ would be seen to preclude a local authority from applying to use the inherent jurisidiction to by pass section 33 of the CA. However, it is clear that this is the route which is now approved and adopted for ‘difficult cases’ – however applications in those cases involving serious issues around medical treatment, ought to be made by the relevant NHS Trust, rather than the local authority.
The Family Procedure Rules 2010 in PD12D at para 1.1 states with respect to the use of the inherent jurisdiction:
“It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.”
The Court decided that applying for passports or EUSS status was something the local authority had the statutory power to do under section 33 of the Children Act and it didn’t need to make an application to the court.
The court found that Parliament intended a local authority which has been granted parental responsibility in respect of a child by operation of law
to be able, following a rigorous procedural and legal process undertaken before a court prior to the granting of such orders and if necessary to safeguard and promote the child’s welfare, to limit the power of a parent to make major decisions regarding a child’s life and instead to take those decisions in place of the parent by exercising its parental responsibility for the child.
There are statutory limitations in s 33(6) and (7) that the local authority cannot cause the child to be brought up in a different religion, change the child’s surname or remove him from the jurisdiction. However, subject to these restrictions and the requirement that exercise of PR must be ‘necessary’ to promote the child’s welfare, the power conferred by s.33(3) on a local authority is not otherwise circumscribed.
A small open category of cases remain where it is appropriate for issues involving exercise of PR to come before the court but it was emphasised that this is only justified where:
where the consequences of the exercise of a particular act of parental responsibility are so profound or enduring and have such an impact on either the child him or herself, and/or on the Art 8 rights of those other parties who share parental responsibility with a local authority, that it would be wrong for a local authority to use its power …’
The court was clear that an application to EUSS or for a passport did not invoke consequences so profound that the court’s approval was needed. The court considered in particular that the application for passport was simply to provide evidence of a child’s identity and nationality, and a grant of immigration status under the EUSS will not prevent the child from returning to their country of origin or, if he or she wishes to, from relinquishing their immigration status in the UK on reaching their majority.
With regard to the child’s Article 8 rights, the court said this:
…whilst it might be possible to identify some factors that may constitute an interference in those rights, for example the fact that settled status will mean the child will remain in the United Kingdom rather than the country of their birth, with the concomitant effect on their understanding of their identity and on relationships with extended family, with respect to children who are the subject of a care order, the question of whether that interference is proportionate will have been determined in the care proceedings as part of the evaluation of the care plan mandated by statute.
Discussion was had about cases where those with PR fail to make the necessary applications to EUSS for a child who is not in local authority care, or a child has been lost and abandoned and no one has PR . The court agreed that this highlighted the need for local authorities to remain alive, when discharging their obligations to looked after children for whom they do not share parental responsibility, care leavers and children in need, to the possibility of cases that may, exceptionally, require the intervention of the court.
The court did have the power to make orders under the inherent jurisdiction but the court was clear this should not be the first port of call and the local authority should first confirm with the Settlement Resolution Centre whether such documents as the child already has available are sufficient for the purposes of the EUSS application. Only if they are not, and no other acceptable documents exist and can be procured, should an application to court for an order under the inherent jurisdiction be contemplated by the local authority.