The High Court judgment we summarise below examines the scope of the powers local authorities have with respect to children who are looked after under a care order. Importantly, as the two cases jointly heard by the High Court considered local authorities’ duties in the context of the European Union Settlement Scheme (EUSS), the judgment also deals with the operation of the EUSS with respect to looked after children and care leavers, including those who are not subject to a care order.
The Court stressed that “it is essential that all local authorities understand and discharge the obligations towards eligible children [in regard to the EUSS] in accordance with the law and guidance detailed in this judgment […].“
The Court jointly heard two cases that involved four children – siblings PW and NW, aged 11 and 9, and siblings DZ and MZ, aged 13 and 12. All four children are Polish nationals and need to have an application made on their behalf to the EU Settlement Scheme (EUSS) to secure their right to remain in the UK after 30 June 2021. PW and NW are looked after under a care order and a placement order respectively, while DZ and MZ are accommodated under Section 20 of the Children Act 1989.
Polish passports or national identity cards, which are necessary for the children to prove their nationality when applying to the EUSS, are not available for any of the four children and none of the parents have consented for the local authorities looking after the children to apply on their behalf. The Polish Embassy has confirmed that the written consent of all those with parental responsibility is required to issue a passport to a child. Where this is not available or not possible, a court decision is required.
The EUSS and looked after children
The deadline for applications to the EUSS is 30 June 2021. To make a valid application to the EUSS, the applicant must provide proof of identity and nationality. Not making an application before the deadline will have profound consequence for a child, potentially leaving them undocumented (without an immigration status) and with limited or no access to public services. Undocumented individuals additionally face the risk of removal from the UK. A 2020 Home Office survey revealed that in November 2020 only 46% of looked after children and care leavers eligible for the EUSS had had an application submitted on their behalf. The same survey indicated that lack of sufficient identity documents was cited as the biggest barrier.
The Court’s decision
The High Court considered the following question: if the parent/s of an EU national child who is the subject of a care order either cannot be located or opposes either an immigration application or an application for a passport/national identity document for the child, does the local authority require court authorisation to apply to the EUSS, or can it proceed with an application based on the powers under Section 33(3) of the Children Act 1989?
The Court decided that, in the context of the EUSS, the local authority will “ordinarily be entitled to proceed under the power [given by] Section 33(3) of the Children Act 1989 and will not first require the approval of the court”. The Court reached the same conclusion with respect to an application for a passport or a national identity document for a child.
Section 33(3)(b) of the Children Act 1989 gives local authorities that have/share parental responsibility for a child the power to limit the degree to which the child’s parents can exercise parental responsibility. This means that local authorities can, in some circumstances, make decisions about the child’s life even when the parents oppose this or if they are not available to give their consent. This power is limited, however, and there are safeguards in place. Firstly, when deciding whether to ‘override’ or dispense with parental consent, the local authority must consider whether this approach is necessary to safeguard or promote the child’s welfare (Section 33(4)). There are also specific exclusions: local authorities are not permitted “to cause the child to be brought up in a different religion”, or to consent to the child’s adoption or to appoint a guardian for the child. Additionally, Section 33(7) prohibits the change of a child’s name or their removal from the UK without the consent of all the persons with parental responsibility or court authorisation.
However, existing case law confirms that some matters are so serious that it would not be appropriate for a local authority to use the powers granted in Section 33(3)(b) and that courts should decide the best course of action. This includes “decisions with profound or enduring consequences for the child” or decisions that would have an impact on the rights of the child, or anyone with parental responsibility, under Article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life. An example of a decision with “profound or enduring consequences” would be one leading to a loss of a child’s existing citizenship that is opposed by the parent/s (click here to read our summary of a case where that happened). However, a decision leading to a child acquiring a new citizenship and becoming a dual citizen would mean the local authority could rely on the statutory powers under Section 33(3) because in such a situation “the child is gaining a benefit and losing nothing”.
In the case of an application to the EUSS, it had been confirmed that the granting to the children of immigration status in the UK under the EUSS would not have any negative impact on the children’s Polish citizenship.
You can read the full judgment here: W and Re Z (EU Settled Status for Looked After Children)  EWHC 783 (Fam) (31 March 2021)
You may also find a summary of the case in Family Law Week helpful.
If you are supporting a child or a young person who is an EU, other EEA or a Swiss national, you may also find the EUSS resources page helpful. The deadline for application to the EUSS is 30 June 2021.
The European Union Settlement Scheme and the rights of looked after children and care leavers
Home Office guidance – EU Settlement Scheme: Looked after children and care leaves: local authority and health a social care trust guidance – states:
“In accordance with existing statutory duties the local authority […] must, in all circumstances, seek to secure the best possible outcomes for the looked after child, safeguarding and promoting their best interests and acting as a good corporate parent […]. Addressing immigration issues early as part of any assessment and care plan, offering support and if necessary, seeking legal advice about the appropriate action based on the circumstances of the individual looked after child is an important part of these responsibilities.“
Identifying all eligible children is one of local authorities’ “mandatory obligations” and Home Office guidance states explicitly that local authorities “should ensure that consideration is given to the child’s wishes and feelings and ensure that the child is aware of their right to access independent advocacy support”.
• With respect to children who are looked after under a care order (Section 31 of the Children Act 1989) or an interim care order (Section 38 of the Children Act 1989), and children with an adoption placement order (Section 21 of the Adoption and Children Act 2002), local authorities must ensure an application under the EUSS is made, either by applying on behalf of the child or, where appropriate, by supporting the child to make the application.
• With respect to children accommodated under Section 20 of the Children Act 1998, local authorities “should ensure that the child and those with parental responsibility for that child are aware of the need to make an application to the scheme, signpost them to the scheme, explain why it is important to apply and offer practical support where needed”.
• For care leavers, securing a status through the EUSS “is relevant to” existing statutory responsibilities to provide ongoing support under the Children Act 1989 (Sections 23A – 24D), and the Care Leavers (England) Regulations 2010 and all issues relating to immigration status should form part of pathway planning.