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Wish they weren't here?

Child removal iStock 000007583512XSmall 146x219Can a parent with parental responsibility object to their child, who is subject to an interim care order, being taken on holiday by their foster parents?

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Would the issue be dealt with by the local authority making an application to the court, or by the parent making an application for a prohibited steps order?

This Q&A considers whether a parent with parental responsibility is able to object to the child being taken on holiday by their foster parents when they are a subject to an interim care order, and which authority the issue would be dealt with.

Where the court makes an interim care order, the local authority (LA) gains parental responsibility as it would under a full care order, but within the constraints of using it for the limited time period of the interim care order. The LA also has the power to determine the extent to which others with parental responsibility may exercise it, although that power may not be exercised unless the local authority is ‘…satisfied that it is necessary to do so in order to safeguard or promote the child's welfare’ (per section 33(3) of the Children Act 1989 (ChA 1989)).Re A (Residential Assessment) [2009] EWHC 865 (Fam), [2009] 2 FLR 443Children Act 1989

Munby J (as he then was) said in Re A (Residential Assessment) (at para [1]) that:

‘It is a cardinal principle of the Children Act 1989 that once a care order has been made, whether interim or final, it is for the local authority, and not the court, to decide how to meet its parental responsibilities for the child. The decision-making power as to the care, residence and general welfare of the child is vested in the local authority, not in the court.’

Newham London Borough Council v Conwell [2000] 1 FLR 595

The courts have also said that, when dealing with others with parental responsibility, the LA has a 'predominant parental responsibility' (per Charles J in Newham London Borough Council v Conwell).

ChA 1989, s 33(7)(b) provides that:

‘While a care order is in force with respect to a child, no person may…remove him from the UK […] without either the written consent of every person who has parental responsibility for the child or the leave of the court.’

That restriction is tempered by the provisions of ChA 1989, s 33(8)(a) which provides, inter alia, that ChA 1989, s 33(7)(b) does not ‘prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is’.

Thus, the first step would be to determine the period of time for which the child is to be removed from the UK. If the proposed holiday is for a period of less tha n one month, and is agreed by the LA, that would be within the boundaries of the LA’s exercise of its parental responsibility. If the holiday is to be for a period in excess of one month, the written consent of every person who has parental responsibility for the child will be required, and, in the absence of such permission, the LA will need to seek the leave of the court.

Where the holiday is for less than one month, and a person with parental responsibility objects, regard will be had to the general principles applicable as to the exercise of parental responsibility where there is a care order in place, interim or otherwise. As there would be no requirement for the LA to seek the leave of the court in such circumstances, it would seem appropriate for an application to be made by the person with parental responsibility who objects to the holiday, however, ChA 1989, s 9(1) provides that:

‘No court shall make any section 8 order, other than a [child arrangements order to which subsection (6B) applies], with respect to a child who is in the care of a local authority.’

As a prohibited steps order is an order under ChA 1989, s 8, no such order may be made while the child is subject to the interim care order. An alternative course of action may be to make an interim application to the court within the context of the existing care proceedings for directions.

The following Practice Notes may be of interest:

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