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Court of Appeal hands down ruling on changing nationality of children in care

A local authority cannot seek to change the nationality of children in care without the matter being considered by the High Court, the Court of Appeal has ruled.

In Y (Children In Care: Change of Nationality) [2020] EWCA Civ 1038, a case relating to two children in care, Lord Justice Peter Jackson said the issues involved were so momentous for their futures that judges had to decide.

The unnamed local authority wished to apply for British citizenship for two children aged 11 and nine who are Indian nationals born in the United Kingdom.

Their parents were unsuccessful in obtaining leave to remain and in August 2015 the children were removed from them and placed in a foster home, where they still live.

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There has since been no contact with the parents and the mother now lives in Singapore, while the father is in England “but his antagonism towards the local authority has made contact unachievable”, the judge said.

The children became the subjects of placement orders but the local authority applied to discharge these when searches for adoptive parents were unsuccessful.

In response the parents applied to discharge the underlying care orders to secure the children's return to their care.

HHJ Tucker had discharged the placement orders but not the care orders, and during the proceedings the local authority stated it would seek to secure the children's immigration status by making applications for British citizenship, which would have the effect of removing their Indian nationality. HHJ Tucker did not rule on this point.

Peter Jackson LJ said that cases where a child might lose their original nationality - rather than gain dual nationality - were “of a magnitude that cannot in my view be resolved by a local authority acting in reliance upon its general statutory powers.

“In the absence of parental consent, it requires a decision of the High Court under its inherent jurisdiction. That is so whether the issue arises within or outside proceedings.”

He said there was no evidence about the options considered by the local authority for securing the children's position in the UK short of an application for citizenship and only a “general understanding” that the granting of British citizenship would lead to the loss of their Indian citizenship.

"There was no acknowledgement of the intrinsic gravity of a change of nationality, to the extent that the issue did not feature in the care plans or in the judgment,” Peter Jackson LJ said.

"No consideration was given by any of the agencies to any disadvantages that might flow to the children from the loss of their nationality of birth. Nor was any consideration given to whether…it would be more appropriate to defer an application to a time when they could express a more informed view.”

He said the local authority’s “characterisation of a change of citizenship as akin to routine vaccination is misplaced.

“Changing a child's citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration.

“Recognising that fact does not have far-reaching consequences for the conduct of care proceedings, as claimed, and it is not asking too much of a local authority to put its case before the court for scrutiny.”

Mark Smulian

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