A local authority in England has been prevented from placing a boy in a children’s home in Scotland because the home could not be classed as a “suitable person”.

The case involved a teenager who was made subject to a care order and placed in a residential home in England in 2018. In March 2019, he was moved to a residential home in Scotland, but the local authority omitted to get the prior approval of the court, as required by the Children Act 1989 (the Act).

It subsequently made an application for the court’s approval, but the judge refused on the basis that the boy did not consent to the placement.

The authority appealed, submitting that the court could still give its approval, even though the child did not consent, if it “is satisfied that the child 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, special guardian, or other suitable person”.

The Court of Appeal ruled against the authority. It confirmed that the boy should not have been placed in Scotland without the local authority having first sought and obtained the court’s approval to the proposed placement. That was not merely a technical failing; it was a substantive failing. All local authorities should be aware of that obligation.

It then held that the Act only applied if a child was “to live … with a parent, guardian, special guardian or other suitable person”. It was not easy to see how a child could live with a company or an unincorporated “body of persons”. While a child could live in a residential home which might be owned by a person, it would be difficult to argue that, as a result, the child was living with a person.

Further, when that consideration was added to the fact that the words “other suitable person” followed a list comprising natural persons, it was not possible to interpret the provision as meaning other than that it was confined to natural persons.

When a child did not consent, and regardless of whether they had sufficient understanding, the court was not permitted to approve their placement in Scotland (or anywhere else outside England and Wales) other than with a natural person.

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Case Citations: [2019] EWCA Civ 1714, RE C (A CHILD) (SCHEDULE 2, PARAGRAPH 19, CHILDREN ACT 1989) (2019), CA (Civ Div) (Floyd LJ, King LJ, Moylan LJ)

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