District Court transfers child care jurisdiction to England under Brussels IIa Regulation Article 15.

IEDC [2018] IEDC 07

THE DISTRICT COURT

AN CHUIRT DUICHE

DISTRICT NO. 1

In the matter of K M a Child.

Child Care Act, 1991

Article 15 of Council Regulation (EC) no 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and

enforcement of judgments in matrimonial matters and the matters of parental responsibility (The Regulation).

CHILD & FAMILY AGENCY

APPLICANT

KG

AND

AM

RESPONDENTS

1. The factual background to the applications brought by the Applicant is set out extensively in the Affidavits of C.McG, sworn on the

22nd January 2018 and C.C, sworn on the 18th April 2018, and detail a lengthy history of engagement by the UK Social Services in

Blackburn with the First and Second Respondents, and the serious concerns which led to five of the First Respondent’s other children

being removed from her care.

2. The First Respondent arrived at Letterkenny University Hospital Co. Donegal on 21st January 2018 and gave birth to the Child KM

the same day. It is believed she had travelled from England a matter of days before that, and that the motive for their move from

England was to avoid K being taken into care there. The local authority in Blackburn had been involved with the family in proceedings

involving the First Respondent’s other children, and had been monitoring the Respondents since becoming aware of the pregnancy.

The First Respondent and Second Respondents are and were at all material times UK citizens and residents, with no habitual residence

in Ireland. The Child was the subject of an application for an Emergency Care Order in this Court brought by the Applicant pursuant to

Section 13 (1) of the Child Care Act 1991. This application, granted for eight days on 22nd January 2018, and subsequent

applications for Interim Care Orders made pursuant to Section 17 of the Child Care Act 1991, were brought as protective measures

pursuant to Article 20 of Council Regulation (EC) No 2201/2003 of 27th November 2003.

3. The Respondents were present in this Court on the 29th January 2018 for the first application for an Interim Care Order, and

consented to the making of the order up to the 22nd February. They were neither present, nor represented, at any of the subsequent

applications for Interim Care Orders made herein, nor were they present or represented at the hearing of this application on the 11th

May 2018. They were aware of this Application, and that it was to be heard on the 11th May 2018. It is believed that they returned

to the U.K. on 9th February 2018, and have not returned to this jurisdiction since then. They had access to the Child from the date

of his birth until the 8th February, and have not seen him since.

4. The Applicants and the Guardian ad Litem, Harry Law (appointed by Order of this Court on 22nd March 2018) have made written

submissions in support of the present Application. The Guardian ad Litem, in his evidence to the Court, supports the Application,

submitting that it is in the best interests of the Child that the case be transferred to the courts of the England and Wales.

Jurisdiction

5. K was born in Ireland on the 21st January 2018. He was taken into the care of the Applicant on the 22nd January 2018, and placed

with foster careers, with whom he has remained up to the present day. He has never left Ireland, or been in England. Thus the entire

of his short life has been spent in Ireland. It is submitted by the Guardian ad Litem that, following the reasoning of Lady Hale in Re A

(2013)(EWCA Civ 232) that the presence of the child is “particularly pertinent” when trying to ascertain habitual residence, for the

purposes of the Regulation.

6. Apart from the above, K has no other connection with Ireland. Both his parents are U.K. citizens who have their habitual residence

in England. All his half-siblings and extended family live in England. These are factors which may lead to the conclusion that K’s

presence is in fact “temporary or intermittent” and do not reflect “some degree of integration in a social and family environment”.

(Quoted extracts per McMenamin J in CG v MG (Unreported – Supreme Court 6th February 2015 (2015 IESC 12)). However, given that

Ireland is all that K has ever known, this Court concludes that Ireland is the habitual residence of K, within the meaning of Article 8 of

the Regulation, and that this Court has jurisdiction. For the purposes of Article 16 of the Regulation, this Court became seised of the

matter on the 22nd January 2018, when the application for an Emergency Care Order was lodged. No proceedings were in existence in

the courts of England and Wales at that time.

Best Interests of K

7. Particular connection:

Having decided that this Court has jurisdiction to consider the Application herein, the Court must now consider whether it is best

placed to deal with the case, or whether the court in England is. It is submitted by the Applicant that K has a “particular connection”

with the U.K., and that the courts of England and Wales are better placed to hear care order proceedings. This Court finds therefore

that due to the facts set out in the preceding paragraph, K has a particular connection with England for the purposes of Article 15(3)

(d), i.e., England is the habitual residence of a holder of parental responsibility.

8. Degree and extent of proximity:

As set out in paragraph 6 above K’s parent, half-siblings and extended family live in England. He has an aunt, who has put herself

forward as a relative carer, and who has passed the initial stage of the assessment necessary for this, and who the Guardian ad

Litem believes would care for him pending completion of care proceedings in England. This Court therefore finds that the degree and

extent of K’s proximity to England is sufficient to rebut the presumption arising under Article 8 of the Regulation that the case be

dealt with by the court of his habitual residence, namely Ireland.

9. Specific added value:

The transfer of this case to England would better serve K’s welfare by bringing him closer to his parents and extended family, and

would enable him to be cared for, at least initially by his paternal aunt. A transfer to England would enable the local authority there to

arrange the necessary support services for K to integrate with his extended family, and in the event that a care order is made, and

during any care proceedings enable K to have access to his parents more regularly and easily than if they had to travel to and from

Ireland for that purpose. Furthermore the local authority in Blackburn have extensive documentary evidence relating to the family,

going back to 1998, as well as access to, and the power to compel witnesses, including expert witnesses, who would not be

compellable before the Irish courts.

10. No detrimental effect on K:

K is now four months old, and is nonverbal, and entirely dependent on adult carers. He would not remember a transfer at this early

stage in his life. The “question of integration” as dealt with by Ni Rafeartaigh J in CFA v S.L. (Unreported High Court 2nd October

2017) would not arise for the same reason. In the present case, K has been with his foster carers for four months, and while doing

very well in their care is not considered to have developed such strong attachments to them that separating from them would be

detrimental to his well being. The opinion of the Guardian ad Litem, given in evidence is that there would be no detrimental effects to

K being transferred to England, and that the present foster carers would travel there with him to assist in the handover to a new

carer.

11. For all of the foregoing reasons, this Court therefore finds that the courts of England and Wales are better placed to deal with

further proceedings in relation to K and grants an Order in the terms of paragraph four of the Notice of Motion herein, the said court

to be seised within six weeks of the date of this Order. The Court also grants liberty to the Applicant to apply for a further Order in

the terms of paragraph five of the said Notice of Motion should it become necessary.

12. The Court also notes the Order of Hayden J., in the High Court of Justice, Family Division, (Case number PR18C00113) in

proceedings entitled Blackburn with Darwen Council (Applicant) and KM (a Minor by his Children’s Guardian)(First Respondent), KG

(Second Respondent), and AM (Third Respondent) dated 16th March 2018, whereby that Court declared that the Courts of England

and Wales do not have jurisdiction to deal with matters relating to the parental responsibility of the subject child. The Order notes

that the local authority confirmed it would accept designation of any interim care order in the Republic of Ireland in the event of any

future incoming transfer of the proceedings from the Republic of Ireland, pursuant to Article 15 Brusells ii bis a (the Regulation).

Cases cited and referred to in this case:

P. v CFA & O’C [2018] IEHC 161 Barrett J.

CFA. v JD (2017) IR 783 McMenamin J.

CFA v S.L. (Unrep., High Court, 2nd October 2017) Ni Raifeartaigh J.

CFA v C.J. (Court of Appeal, 29th April 2015)

CFA v J.D. & R.P.D. (Case C-428/15) CJEU

Re A (2013)(EWCA Civ 232) Hale B.

Mercredi v Chaffe (2012) (Fam 22)

CG v MG (Unrep., Supreme Court 6th February 2015)

Re I(a Child) (Contact Application: Jurisdiction)(2010) A.C. 319

Re K(a Child)(2013)(EWCA Civ 385)

Nottingham City Council v L.M. (2014)EWCA Civ 152)

R & H v U.K. (2011) 2 FLR 1236

HSE v M.W. & G.L. (Supreme Court, 31st July 2013 McMenamin J.)

WARNING

The Hearing of this case took place in camera [in private]. No party to the proceedings may divulge any matters arising out of the

proceedings save on the authority of the Court to do so is a contempt of court and any person found in contempt shall be liable to

penalty including imprisonment.

No one may publish or broadcast anything which is likely to lead members of the public to identify the child/children in this case unless

specifically allowed by the Court. If anything is published which might identify the child/children then the publisher or broadcaster may

also be held in contempt of court. The owner, editor, publisher or transmitter shall be guilty of an offence and shall be liable on

summary conviction to a fine or imprisonment or both such fine and imprisonment.

Judge Paul Kelly

Judge of the District Court

24th May 2018