Case note on Re J [2026] EWFC 26
https://www.bailii.org/ew/cases/EWFC/HCJ/2026/26.html
Judgment given by Mrs Justice Knowles 10th February 2026
Summary of Background:
The child was 11 years and 9 months old and subject of an interim care order and in foster care.
Father issued an application for an order under the inherent jurisdiction seeking to “restrain any change of school or geographic location of the child, including any preparatory steps, pending further order of the court, in order to preserve the status quo and enable judicial supervision of proposed irreversible steps”, effectively seeking an order preventing the local authority moving the child from her current secondary school or from a placement which allowed to remain at her school.
There was an imminent move planned for the child to move with her current foster carers to another property which would require a change of school because of the distance involved and this was strongly opposed by the father.
The father‘s opposition to the proposed change of school had been known for some time and had been considered at a hearing before the circuit judge to whom the care proceedings had been allocated. At that hearing the guardian confirmed that, following a visit to ascertain the child’s wishes about the proposed move, she had expressed a strong wish to move with her current foster carers and understood that this would mean a change of school.
At a subsequent adjourned hearing a few weeks later the circuit Judge declined to hear any submissions or make any order with respect to the proposed change of school.
The local authority asserted that the issue fell within the exercise of its parental responsibility pursuant to a.33(3)(b) and 33(4) of the Children Act 1989. The mother supported the move as did the children’s guardian.
The father then issued his application for relief pursuant to the inherent jurisdiction and, following a further directions hearing before the circuit judge, the matter was then considered by Mrs. Justice Knowles.
The full background and history are not set out for the purposes of this article.
The position of the parties:
At the hearing the father invited the court to make an order that the child should not be moved from her present school on the basis that such a move was not in her best interests, would significantly reduce his contact time with her, that such a move would pre-empt the outcome of the final hearing and was not driven by any welfare need.
The father also submitted that the child’s views had been contaminated throughout the proceedings and were not authentically her own. Finally, that there had been no meaningful consultation between the father and the local authority about the move or the proposed change of school.
The relevant parts of the Legal Framework considered by Mrs Justice Knowles are summarised as follows:
[23] Section 33 of the Children Act 1989 provides:
(3) While a care order is in force with respect to a child, the local authority designated by the order shall—
(a) have parent responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which
(i) a parent, guardian or special guardian of the child; or
(ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for him.
(4) The local authority may not exercise the power under subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.
(5) Nothing in subsection (3)(b) shall prevent [a person mentioned in that provision who has care of the child] from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.
Paras (6) and (7) set out a number of matters that the local authority shall not do while care order is in force but none relate specifically to a child’s education.
[24] Subject to the specific restrictions on the power and/or authority of the local authority to take steps in respect of religion, adoption, and the use of a new surname, in other respects, the general principle set out in section 33 (3)(b) remains good, namely that, when either an interim or final care is in force, the local authority share parental responsibility with a child’s parents.
If the local authority considers it necessary, having consulted with the child’s parents, it has the power to determine the extent to which it may exercise parent responsibility. This includes decisions about where a child goes to school.
[25] With reference to Hereford Council v M. F & others [2021] EWHC 749 (per Keehan J, referring to King LJ in Re C (Children) [2016] EWCA 374.
(57). It is common ground that the effect of the making of a care order or interim care order by virtual of section 33(3) CA 1989 grants a local authority parental responsibility. Section 33(3)(b) goes further, as it not only allows a local authority to share parental responsibility with a parent, but gives it the power to:
“ determine the extent to which a parent may meet his parental responsibility for the child”.
(58). That power is however subject always section 33(4) CA 1989 which states:
“(4) The authority may not exercise the power in subsection 3(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”
(59). A local authority can, by virtue of the power and conferred upon it by section 33(3) CA 1989, therefore limit the power of a parent to make major decisions regarding the child’s life. The local authority affect holds a ‘trump’ card which it can choose to play in the decision-making process in relation to a child in care subject to section 34(4) CA 1989. An example of the issue to which this power is routinely (and appropriately) put is in deciding where a child in care is to live.
(60). In private law cases, some issues are considered so fundamental to a child’s well-being that, even if a parent has a child arrangements order setting out that the child is to “live with”( in old terms a residence order), that parent cannot make certain decisions without the written consent of every person who has parental responsibility or the leave of the court, including, under section 13 CA 1989, changing a child’s surname.
(61). Similarly, where there is a care order in place, the power conferred upon a local authority by section 33(3)(b) CA 1989 exclude certain circumstances where Parliament was of the view that the issue in question is too significant to be determined without either consent or a court order…..These matters set out in subsections (6) and (7) of section 33 CA 1989 and include a section 33(7)(a) CA 1989, causing a child be known by a new surname.
Judgment
In summary Mrs Justice Knowles said that what is clear from the case law, following the decision in Re C (referred to above) that the the powers vested in the local authority by the making of a care order, whether interim or full, are subject to section 34(4) of the 1989 Act.
Thus, a local authority may not override parental responsibility unless it is satisfied that doing so is necessary to safeguard or promote the child’s welfare. Therefore, ultimately, if the local authority is so satisfied it is for the local authority and not the parent or any other person who has held parent responsibility to decide where a child in care should go to school even if, as in this case, it flows from the decision of the foster carers to move.
Though not raised by the parties (represented by leading counsel) Mrs Justice Knowles also had regard to the “General duty of local authorities in relation to children looked after by them” as set out in section 22(4) of the Children Act 1989 which states clearly that:
“Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of
(a) the child;
(b) his parents;
(c) any person who is not a parent of his, but who has parental responsibility for him; and
(d) any other person whose wishes and feelings the local authority consider
to be relevant, regarding the matter to be decided.”
adding that thus, a local authority is expected to consult with parents where reasonably practicable and that, in accordance with public law principles, that consultation is not simply for the local authority to pay lip service to parental views before making decisions about a child in care.
Mrs Justice Knowles added, recognising that children’s lives in the care system are subject to frequent change, consultation with parents must be what is reasonably practicable. That will vary from case to case – in some cases, there may be the luxury of time to hold meetings with parents about a particular issue but, in other cases, events might dictate that parents are told about significant proposed changes at a court hearing without any prior notice. However, engagement with parents is necessary, even if the circumstances are not ideal.
When dealing with matters of process in her analysis, Mrs. Justice Knowles was satisfied that the case law makes plain that parental decision-making can be overridden by a local authority, where a child is subject to an interim care order.
Mrs Justice Knowles was not persuaded by the father’s submission that the proposed change to the child’s school pre-determined any decision at the final welfare hearing as all judges should, when coming to a decision about a child’s warfare in public law proceedings, undertake an holistic analysis of the realistic options for the child’s care.
That requires a careful scrutiny of the advantages and disadvantages of each option, alongside judicial findings about the welfare checklist as it applies to the child. The issue of schooling will be but one part of the matters which the court will need to consider at that stage and, in the circumstances of this case, Mrs. Justice Knowles doubted very much it would be determinative of the final welfare decision.
When considering the father’s assertion that there had been inadequate consultation with him about the change of school, Mrs. Justice Knowles said, after commenting that it might have been ideal if the local authority had held a meeting with the parents away from the court setting to discuss the move and the change of school, that the local authority was operating within tight time scales, had done its best to notify the parties and to consider an alternative school and had consulted with the parents as far as was reasonably practicable.
In her analysis Mrs Justice Knowles confirmed that she had also taken full account of the Article 8 and 6 rights of the child and the parents and that, standing back, and looking at matters of welfare in the round, the balance sheet was firmly in favour of the child moving with her foster carers and changing her secondary school. By taking an holistic assessment, meant that she was satisfied that the local authority’s decision making both safeguarded and promoted the child’s welfare.
The father‘s application for an injunction under the inherent jurisdiction was refused.
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