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Re W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783

This case examines in general the ambit of section 33 of the Children Act 1989 and in particular how local authorities should approach applications for immigration status for those children in their care. Some children will be subject to care orders which confers parental responsibility upon the local authority. Section 33 permits the local authority to restrict the exercise of parental responsibility by others such as parents, when it is necessary for the child’s welfare.

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The court examined 3 separate applications made by local authorities under the inherent jurisdiction of the High Court to determine how application should be made to regulate a child's immigration status under the United Kingdom's European Union Settlement Scheme (EUSS)  Given the UK's withdrawal from the European Union, the right to 'freedom of movement' within the EU came to an end, and children who were nationals of another EU country living in the UK would find their right to remain in jeopardy without an application.

The court concluded that there is only a small category of cases where the local authority need to get the court's permission to 'over rule' parents,, rather than simply relying on the statute and that applying to regulate a child's immigration status, or applying for an identity document in order to make that application, for did not fall within the category.

The court examined the following issues:


1. 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?

2. If the EU national child requires a passport or other identity documents from the relevant EU Member State, 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 determined that the local authority could proceed to make applications for a child's settled status without requiring the court's approval. If an order was required in order to get a copy of identification documents from the relevant EU Member State in order to make the application, the court did have the power to make an order under the inherent jurisdiction but the local authority should first check with the EUSS what documents were required as it may be possible to proceed without a passport. The Secretary of State for The Home Department, as intervenor, reassured the court that caseworkers at the EUSS will be looking for reasons to grant applications, not refuse and should exercise discretion in favour of applicants to minimise administrative burdens.

The issue of securing a child's immigration status was important, given the estimated 3,300 looked after children and care leavers who were eligible to apply to the EUSS. 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 necessary that all local authorities understood and discharged their duties towards children who are eligible to apply, although there was a discretion for late applications to be made.

With regard to children not subject to care and placement orders, 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. If the local authority did not share PR for a child, this may mean an application to the court was necessary.

The court examined also the broader issue of what categories of decision were so serious that it would not be appropriate to allow the local authority to rely on section 33 of the Children Act 1989. A small open category of cases remain where it is appropriate for issues involving exercise of parental responsibility to come before the court but it was emphasised that this is only justified 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 …'

Three Court of Appeal decisions were considered as guidance.


In Re C (Children) [2016] EWCA Civ 374, 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) [2020] EWCA Civ 664 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) [2020] EWCA Civ 1038, 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 the observation of King LJ at para 99 of 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 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 parental responsibility must be 'necessary' to promote the child's welfare, the power conferred by s.33(3) on a local authority is not otherwise circumscribed.

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.

Case summary by Sarah Phillimore, Barrister, St John's Chambers

For full case summary, please see BAILII