Two minor children with Indian nationality, aged 11 and 9, are caught up in the foster care system in England, with local authorities wanting to change their citizenship status to British amid a legal row with their parents, which has landed in the UK’s Court of Appeal.
In a judgement handed down by a three-judge bench including Lord Justice Peter Jackson, Lord Justice Richard McCombe and Lady Justice Eleanor King on Thursday, it was decided that the Birmingham Children’s Trust must seek the court’s approval before any attempt to apply for British citizenship for the children in the face of “parental opposition”.
“Changing a child's citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration,” the judges noted in the ruling, handed down remotely under the coronavirus lockdown protocol.
“In the present case, the local authority would require leave to apply for the court to exercise its inherent jurisdiction… if it was in the children''s interests for them to become British citizens, there is reasonable cause to believe that they would be likely to be significantly harmed by that course not being pursued; the nature of the harm being their liability to removal from their lifelong home country on reaching adulthood,” the judgment concludes, indicating that a future application for a change in citizenship before the court has some prospect of success.
As in many family court matters, none of the parties in the case has been identified. The case, which originated in the Birmingham Family Court, involved the UK-based father being represented in court by prominent Indian lawyer Harish Salve.
The Singapore-based mother was assisted by a “Ms Rao”, described as a legally qualified “McKenzie friend” based in Delhi. The unusual case dates back to August 2015, when the children were removed from the care of their Indian-origin parents who came to the UK in 2004.
While the reasons behind that children’s removal were not revealed in court, it was noted that contact with the parents has not taken place for nearly five years now.
“The mother left the UK in November 2015 while pregnant and now lives in Singapore. The father has remained in England, but his antagonism towards the local authority has made contact unachievable,” the court noted.
In the course of a complex set of proceedings over the years, the children became the subject of placement orders, or were to be put up for adoption. However, the search for adoptive parents was not successful and in December 2018, the local authority applied to discharge the placement orders.
The parents responded with an application to also discharge the underlying care orders in order to secure the children''s return to their care or to the care of family members in India or Singapore.
But following a court ruling in December last year, it was determined that the children must remain in long-term foster care for the remainder of their childhoods.
It was during the course of those proceedings that the local authority, the Birmingham Children’s Trust, stated that 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.
“Although these children had been in the care of the local authority for several years, no steps had been taken to regularise their immigration position. That is a matter of justified concern, even though there is no immediate threat of removal.
The children would clearly benefit emotionally from their position being regularised and from being able to travel in and out of the country, for example, if opportunities for school trips or holidays were to arise,” this week’s ruling notes, as it gives the local authority the option to make a further application to the court to consider the childrens'' citizenship issue.
“Depending upon expert advice, it [the application] may not need to be made as a matter of urgency, and consideration might be given to whether it should be taken at a time when the children would be more able to express their own views.
"That of course does not prevent an application being made now as it would be open to the court to approve an application being made at a later date,” the judgment adds.
It was also noted that the hearings in the case have proved "challenging", requiring interpreters.
