What to do about the Re C problem?

December 17, 2024

Justin Gray explores solutions to the risk of children being able to veto their own care plans for long-term living arrangements in Scotland.

Scottish residential placements continue to grow in number and popularity, often with good quality care and better staff retention than many of their English equivalents. Perhaps as a sign of their success, there are now an increasing number of final care plans before the English Family Court setting out intentions to use Scottish resources for long-term arrangements.

These cases bring the question of whether the English local authority needs to obtain court approval for the child to live outside its jurisdiction, and to obtain consents pursuant to Children Act 1989 Schedule II paragraph 19(1). This in turn can raise the problem of the decision in Re C (A Child) (Care order) [2019] EWCA Civ 1714.

The legal framework

The exercise for the Court in relation to the outcome of care proceedings becomes two-stage in such cases: a welfare evaluation as to the best interests applying the matters set out in Children Act 1989 section 1, and then an examination of the consent of each of the child and those with parental responsibility pursuant to the paragraph 19 scheme. Both of these issues are essentially built into paragraph 19(3), so the same process arises in relation to post-care order placement plans turning to long-term arrangements to live in Scotland.

(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.

Paragraph 19(5) provides grounds for the Family Court to dispense with the consent of those with parental responsibility if required. Paragraph 19(4) permits disregard of the lack of consent of the child in certain circumstances, but only if the plan is for that child to go to live with a parent, a guardian, a special guardian, or an ‘other suitable person’.

(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.

In 2019 the Court of Appeal determined in Re C that ‘living in Scotland with a suitable person’ does not include living at a residential children’s home, notwithstanding the likely eminent suitability of the staff at the placement. There was no ruling in relation to where a professional or kinship foster carer would stand in relation to this, including a foster carer employed by a company. One would expect that even the latter would hopefully be considered as suitable as they are at least – to borrow the Court of Appeal’s phrase – ‘natural persons’.

The rationale of Re C

In its ruling, the Court applied fairly substantial weight to the points considered in the decision of Munby P in Re X & Y [2016] EWHC 2271 (Fam), a decision about secure accommodation in Scotland that led to legislative changes in 2017 in both Westminster and Holyrood. Moylan LJ noted that the definition of ‘person’ in the Interpretation Act 1978 included “a body of persons corporate or unincorporated”, but thereafter came to the same conclusion as Munby P that a child could not live with a company.

Munby P had rightly acknowledged that secure accommodation is always, by its very nature, going to be a short-term placement, and therefore unlikely ever to be a place where a child might be said to ‘live’ or adopt as longer-term living arrangements. However, whilst both kinds of institutions are almost always owned and managed by companies rather than individuals, secure accommodation is a very different environment to the arrangements for children in these small therapeutic children’s homes. In many cases they are now being used as long-term arrangements for children who require the kind of enhanced care that they offer. Moylan acknowledged that the decision in Re C would likely create a gap in provision.

As a potential vindication of the Court of Appeal decision in Re C for different reasons, the wording of Schedule II paragraph 19(4) may have been designed to reflect the placement provisions of section 23 as it was when the Children Act came into force in 1991, before the Children & Young Persons Act 2008 amended it to replace section 23 with sections 22A-G, and in particular section 22C. Between 1991 and 2010 section 23 read as follows:

(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by—

(a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with—

(i) a family;

(ii) a relative of his; or

(iii) any other suitable person,

on such terms as to payment by the authority and otherwise as the authority may determine;

(b) maintaining him in a community home;

(c) maintaining him in a voluntary home;

(d) maintaining him in a registered children’s home;

The phrase “other suitable person” at section 23(2)(a)(iii) was not replicated in the new section 22C, but remained and continues to remain unchanged at Schedule II paragraph 19(4). My own analysis of Hansard provides no assistance as to why.

The Court of Appeal acknowledged the practical difficulties likely to flow from its decision, and Moylan LJ proposed that the issue be brought to the attention of the President of the Family Division. I submitted a paper to McFarlane P in October 2019 in response, which set out the argument that later came to approved by Cobb J in Re H (Interim Care: Scottish Residential Placement) [2020] EWHC 2780 (Fam). Re H dealt with interim care orders and interim placements only, and there is still no published guidance on final care orders or long-term placements.

The decision in Re C is most likely going to continue to stand as binding authority upon the Family Court, and to be a bar to the ability to disregard an English child’s refusal or failure to consent to a long-term living arrangement at a Scottish residential unit – regardless of that child’s age and capacity.

Getting round the Re C problem

Exercise of the High Court’s inherent jurisdiction is considered as a potential solution in obiter dicta in Re H and Re X & Y, but it is difficult to see how that can properly be employed given:

The fact that it would entirely cut across the Schedule II paragraph 19 statutory scheme,
The restrictions on its use in Children Act 1989 section 100(2), and
The threshold for leave for the Local Authority to seek to invoke the jurisdiction, required by section 100(3).

A number of recent unreported cases in which I have been involved illustrate how the Re C problem might be addressed in practical terms. They do not come from court centres accredited for reporting by legal bloggers under the current Reporting Pilot, so the Administration of Justice Act 1960 section 12 continues to prohibit me from setting out the way that the care plans were phrased or how the long-term arrangements were resolved to get round Re C, but a summary is as follows:

Allow the Court to make its Children Act 1989 section 1 welfare evaluation and then briefly adjourn to provide the child with a further opportunity to consider whether to consent to the arrangements (assuming that the Family Court decision is to find the placement to be in their best interests).
Consider the extent to which the information from the proposed placement constitutes a home in the truest sense, and the extent to which the child will be living there.
Adjust the care plan to allow for various contingencies, including an alternative resource in either England or Scotland
Establish whether the placement staff and Children’s Services have the same intentions in relation to the plan. One of each might have a different view of the likely long-term arrangements.
Check the ownership, management, and staffing arrangements of the proposed long-term placement.
Consider the age of the child and the wording of the section in the care plan addressing ‘proposed duration of placement’. A care plan for an 11-year-old stating that she will “remain at the resource in Scotland until she is 18 years old” plainly creates difficulties in arguing that this is not a long-term plan for the child to live in Scotland.
Identify any links with Scotland already established, including whether the provision of education is in-house or in a local Scottish school.

Conclusions

Aside from adjustments in the light of the invention of special guardianship, the decision to share secure accommodation resources between England and Scotland, and the reform of adoption legislation in 2002-5, Schedule II paragraph 19 remains unamended since it was written in 1989. Thirty-five years ago, many more local authorities had their own residential resources and rarely found themselves scouring the Southern counties of Scotland for suitable placements. It may be time for further harmony between the two jurisdictions.

The Re C problem is just one potential obstacle to the process of obtaining Schedule II paragraph 19 approval. One recent case involved an additional complicating factor that the family had moved to Scotland just before the issue of proceedings (although at a jurisdiction determination hearing the Court established that the child remained habitually resident in England). Therefore the child was going to be living in Scotland on either one of the two realistic options before the Court.

One senior judge has queried whether the nature of residential therapeutic placements means that they can ever be intended to involve their residents being considered to ‘live’ in that location. Care needs to be taken in relation to the formulation of care plans that suggest otherwise, at least where the child is reluctant to leave parental care. Otherwise, even young children are granted a veto over what might otherwise be considered and determined to be in their best interests.

Justin Gray is a barrister at Trinity Chambers, Newcastle upon Tyne, and a door tenant at Harcourt Chambers in London.