Court of Appeal rules on need for court approval of residential care placements outside England and Wales

The Court of Appeal has rejected an appeal by an unnamed local authority over a judge's refusal to give the court's approval to the council arranging for a child (C) to live in Scotland in a residential home in which he had been placed.

In C (A Child) (Schedule 2, Paragraph 19, Children Act 1989) [2019] EWCA Civ 1714, Lord Justice Moylan said the child should not have been sent to Scotland.

The local authority had appealed orders made by HHJ Greensmith in July 2019.

Lord Justice Moylan said a local authority may only arrange for a child in their care to live outside England and Wales with the approval of the court under paragraph 19(1), Schedule 2 to the Children Act 1989 and the court can only give approval if a number of conditions are satisfied including that the child has consented to living in that country.

The only exception is if the child concerned does not have sufficient understanding to give or withhold his consent and if the child is to live in the country concerned with a parent, guardian or ‘other suitable person’.

There had been inconsistent information from C, a young teenager, as to whether he was willing to live in Scotland but the judge said the case eventually came down to whether the words "live in the country concerned with … a suitable person” included living in a residential home.

The local authority argued, largely under the Interpretation Act 1978, that ‘other suitable person’ includes persons corporate or unincorporated.

Moylan LJ said C had been placed in Scotland without the court's approval and the local authority later sought to remedy this and gained interim consent to this.

Later the solicitor for C’s appointed guardian told a hearing that C had changed his mind and was “adamant” that he no longer consented to his placement in Scotland.

The court then withdrew its interim consent and rejected a further attempt by the local authority to reinstate it.

Giving judgment, Moylan LJ, with whom Lady Justice King and Lord Justice Floyd agreed, said: “C should not have been placed in Scotland without the local authority having first sought and obtained the court's approval to the proposed placement.

“This was not merely a technical failing; it was a substantive failing. I would expect this local authority and, indeed, all local authorities to be aware of this obligation.”

He noted it was “not easy to see how a child could live with a company or an unincorporated ‘body of persons’”.

If a child were living in a residential home owned by a company “it would be difficult to argue that, as a result, the child was living with a person”.

Moylan LJ said: “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, to natural persons.

“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 judge though recognised the potential practical need for children to be placed in residential units in Scotland and said there might be a ‘gap’ in the legislation.

He therefore proposed to bring the situation to the attention of the President of the Family Division.

Mark Smulian