The Court of Appeal just had to decide this point, and at first reading it seems an incredibly niche and technical point. I suspect, however, if you live in the North of England, it isn’t.
C (A Child) (Schedule 2, Paragraph 19, Children Act 1989)  EWCA Civ 1714 (17 October 2019)
In essence, because of either a shortage of residential children’s homes in England, or an excess of demand, or ones in Scotland being a better fit, some Local Authorities want to / have to place children in their care in residential children’s homes in Scotland.
That means that they butt heads with Schedule 2 para 19. There’s a potential problem here (NOTE that it is NOT a problem for Secure Accommodation in Scotland which has all sorts of its own problems, but not as a result of this particular problem)
- Schedule 2 to the 1989 Act contains a number of provisions dealing with “Support for Children and Families provided by Local Authorities in England. Paragraph 19 contains “Arrangements to assist children to live abroad”.
- Paragraph 19 provides as follows:
- 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.
(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.”
The net effect of para 19 is that EITHER
(a) The child has to consent to being placed in Scotland OR
(b) If the child doesn’t have sufficient understanding to consent, the Court can consent on their behalf IF the child is to live in Scotland with a ‘parent, Guardian, special guardian or other suitable person
So, in a situation where the LA wants to place a child in Scotland in a residential children’s home and the child doesn’t consent, IS the residential children’s home an “other suitable person”? because if not, the placement can’t happen.
- On the first issue, (i), paragraph 19(4) applies only if the child is “to live … with a parent, guardian, special guardian or other suitable person”. As Floyd LJ observed during the hearing it is not easy to see how a child could live with a company or an unincorporated “body of persons”. For example, while a child can live in a residential home which might be owned by a company it would be difficult to argue that, as a result, the child was living with a person. Further, when this is added to the fact that the words “other suitable person” follow a list comprising natural persons, I do not consider it is possible to interpret this provision as meaning other than that it is confined, as decided by Sir James Munby P, to natural persons. Whilst I recognise that there might well be a practical need, as submitted by Mr Howling, this cannot counter the factors referred to above and such a need alone would not provide a legitimate basis for the proposed statutory interpretation.
- The result of this conclusion is that, when a child does not consent, and regardless of whether they do or do not have sufficient understanding, the court is not permitted to approve their placement in Scotland other than with a natural person. The consequence is that a local authority cannot “arrange for, or assist in arranging for, any child in their care”, who does not consent, to live in a residential home in Scotland (or, indeed, anywhere else outside England and Wales).
So (other than in Secure) an English or Welsh LA can’t arrange for a child in their care to live in a residential children’s home in Scotland UNLESS the child consents to that. (I’m stressing a lot that this does NOT apply to Secure Accommodation, because obviously a child having to consent to that is just not going to happen. Parliament amended Schedule 2 para 19 to specifically take Secure out of this scenario)
There’s a hint in the next paragraph that there might at some later point be some Classic Dom TM argument to be made about the child really living with a person (I suspect like all Classic Dom TM arguments so far, it won’t work if attempted)
- Given the limited submissions we heard on the history which might lie behind this particular provision and on the broader potential ramifications, I do not propose to address Ms Irving’s additional submission as to whether the term “other suitable person” might be further confined. All I would say is that a court would clearly need to establish who would have parental responsibility or, in broader terms, legal responsibility, for a child before that child could be placed outside England and Wales. One of the problems that has been a feature of some care cases (and still can be judging by the very recent judgment of Re K, T and U (Placement of Children with Kinship Carers Abroad)  EWFC 59) is a regrettable failure to address at an early stage of the process the legal issues which require to be resolved to enable such a placement to take place in a manner which safeguards the child’s best interests.
The appeal was also constructed on what
Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent,
might actually mean. Is it a straight Gillick-competence type test? Or is it softer than that with the Guardian or solicitor for the child just advising the Court that on this issue, the child’s views are genuinely reflective of their settled position? (I suspect you’d have to at least understand that if you say “I’m not going to live in Scotland” what that means for the other options. Note that unlike the provisions for parents consent to be overridden if they are withholding it ‘unreasonably’ for a child it is a straight key – if you CAN consent and you don’t, that’s the end of it. You can’t be placed in Scotland. )
- As to the second issue, (ii), we only heard very brief submissions because we had already decided that the legal point raised on behalf of the Guardian was correct. This is not, therefore, a case in which it would be appropriate to provide detailed guidance, if such is in any event required. I would, however, make the general point that the answer to the question of whether a child has “sufficient understanding” requires consideration of all the relevant information and evidence and involves a broad assessment of the child’s intelligence, maturity and understanding of the factors relevant, in the context of paragraph 19(4), to the proposed placement outside England and Wales.
- This need not be an extensive investigation or analysis but in my view, in the circumstances of this case, it required a more extensive consideration than that given by the judge. I fully accept that the judge was being given the opinion of a very experienced solicitor but there was also evidence from the Social Worker with which the judge needed to engage. It was a decision for the judge to make and not one which depended simply on the solicitor’s opinion. It might, further, have been better to wait until the analysis which the Guardian had been ordered to file had been provided
They add at the end
This may be a “gap” in the legislative framework similar to the situation that previously existed in respect of secure accommodation. I, therefore, propose that this issue be brought to the attention of the President of the Family Division for his consideration.