District Court stays child care proceedings to transfer jurisdiction to European courts for added value in custody case.

Record No. Z1957/2018

AN CHUIRT DUICHE THE DISTRICT COURT

[REDACTED] DISTRICT

CHILD CARE ACT 1991 - SECTION 17(1)

APPLICATION FOR AN INTERIM CARE ORDER

In the Matter of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition

and enforcement of judgments in matrimonial matters and matters of parental responsibility (the "regulation").

IN THE MATTER OF AAAS, A CHILD

Child and Family Agency

Applicant

-and-

SAS

First Named Respondents

-and-

MSAS otherwise known as AAS

Second Named Respondent

Application to Extend Interim Care Order and Request to Transfer this Case for Hearing to a Court Better Placed to Hear the Case Under Article

15 Council Regulation (EC) No 2201/2003 Of 27 November 2003 Concerning Jurisdiction and The Recognition and Enforcement of Judgments in

Matrimonial Matters and Matters of Parental Responsibility (The "Regulation").

1. This case concerns a baby who is approximately 10 weeks old having been born in November 2019. The Court made an Interim Care Order

under Section 17(1) of the Child Care Act, 1991 on 3 December 2018 and granted an Extension of the Interim Care Order on 21 December 2018

in accordance with Section 17(2) of the 1991 Act. The Court appointed a Guardian Ad Litem to represent the best interests of the child.

2. Having assessed the Court’s Jurisdiction under Article 17 of the Regulation, and having considered the submissions by counsel for the mother and

father and the solicitor for the Agency and taking into account the relevant Articles in the Regulation as well as case of Re A (Area of Freedom,

Security and Justice) Case C-523/07, [2009] 2 FLR and Mercredi v Chaffe Case C-498/10, [2011] 1 FLR 1293 and Case C 393/18 PPU UD v

XB on 3 December 2018 the Court found that it was properly seized of this case pursuant to Article 13 of the Regulation based on the child’s

presence and birth in this jurisdiction.

3. Article 15 of the Regulation provides:

‘1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of

another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and

where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in

accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration,

conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member

State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept

jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction.

Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

4. The Agency consider that, by way of exception, the facts of this case indicate that the Courts of another European jurisdiction are better placed to

have jurisdiction as to the substance of the matter because:

(A) All the professional witnesses’ necessary to determine the substantial issues in the case are resident in said European jurisdiction and are not

compellable in Ireland should they decline to give evidence.

(B) Documentary evidence relating to the parents’ capacity to parent the child, the father’s criminal convictions and probation reports and the mental

health histories of the parents are located in said European jurisdiction;

(C) The child’s nationality is of another European jurisdiction in accordance with a domestic Act pertaining to this issue and Article 15.3 (c) therefore

applies because as a citizen of the said European jurisdiction the child has a “particular connection” with the European jurisdiction in question, even

though the child may also have a right to other nationalities;

(D) The mother is a national of said European jurisdiction;

(E) The father has been granted refugee status there albeit under a different surname and birth certificate;

(F) The father has a tenancy in a property in said European jurisdiction;

(G) The parties are in receipt of disability payments in said European jurisdiction;

(H) The parents have no connections with this jurisdiction other than the fact that their daughter was born in this jurisdiction; and for these reasons it

was in the baby’s best interests for a request to be made under Article 15;

5. The Guardian Ad Litem visited the child and the parents and observed access by the parents with the child. The Guardian Ad Litem also had

interviews by Skype telephone with the father’s two children who reside with their mother outside the European Union.

6. The CFA and the GAL are of the view that the courts of the said European jurisdiction are better placed to hear the case and the Court was

informed that the parents were no longer objecting to the transfer of the case under Article 15 but were not consenting to such an Order either.

7. Recital 12 of the Regulation provides: -

(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of

the child, on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence,

except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.

8. In deciding whether there is a court “better placed”, the requested Court with jurisdiction should consider the test set out a paragraph 56 and 57 in

the case of CFA v JD, ECJ C-428/15, where the ECJ states:

“56 Consequently, it remains the task of the court having jurisdiction to determine, secondly, whether there is, in the Member State with which the

child has a particular connection, a court that is better placed to hear the case.

57 To that end, the court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and

specific added value, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before

that court.

In that context, the court having jurisdiction may take into account, among other factors, the rules of procedure in the other Member State, such as

those applicable to the taking of evidence required for dealing with the case. However, the court having jurisdiction should not take into

consideration, within such an assessment, the substantive law of that other Member State ….

9. The Supreme Court in the case of Child and Family Agency -v- JD [2017] IESC 56 (19 July 2017) at paragraph 35 provides that courts should

“set out, in its judgment and order, the basis upon which, in accordance with the relevant provisions of Brussels IIR, it is either accepting or rejecting

jurisdiction, and also the basis upon which, in accordance with Article 15, it either has, or has not, decided to exercise its power under Article 15.

The effect of this will be to determine that the court has actually addressed issues which may not always have been addressed in the past, and may,

sometimes, be overlooked by the parties”.

10. At paragraph 33 .5 of its judgement the Supreme Court noted that to ascertain whether there is a sufficient degree of proximity between a child

and another member state to justify a transfer pursuant to Article 15, a court should apply the following factors set out in the Article, as follows:

(a) Whether there is a connection with another member state. If there is no such connection, there cannot be a transfer. The existence of a connection

is a gateway to the power to seek a transfer.

(b) The court must then consider the degree and extent of the proximity to the other member state arising from the connection. If such a connection is

established, the court must be satisfied that the court of another member state is better placed to determine the case, or some part thereof.

(c) To establish that a court is “better placed”, it must be proved that the transfer of the case to that court would provide genuine and specific “added

value” with respect to the decision to be taken.

(d) In considering whether there will be such “added value”, the court may not have regard to the nature of the substantive law of the other state, but

may have regard to the rules of procedure therein.

(e) The court must be satisfied that the transfer of the case will not have a detrimental effect on the child. The desirability of the case being determined

by the court best able to do so may, therefore, be overridden by some negative effect on the transfer of a case on the circumstances or situation of

the child. The court may, in the context of having assessed the negative effects on the situation of the child, decide to request the transfer of part of the

case, as opposed to the entire case. This may, in particular, be appropriate where the factor of proximity with another member state relates not to the

child directly, but to one of the holders of parental responsibility.

11. I am satisfied on the facts and submissions that there is indeed an added value to the Courts of said European jurisdiction dealing with all

substantive issues in this case because the mother is a national of that jurisdiction, the evidence of each of the parents respective capacities lie in said

European jurisdiction and all the relevant evidence is there and the witnesses are both present and compellable there and the Guardian Ad Litem is of

the opinion that it is in the best interests of the child provided the issues of who will care for the child are determined before he/she develops

attachments to his/her primary carers. All the connections between the child and his/her maternal family are in said European jurisdiction.

12. For the purposes of the Child and Family Agency making a formal request under Article 15(2) (a) and paragraph 5 of the Regulation that the

most appropriate Court hear and determine the proceedings in all the circumstances is the Courts of said European jurisdiction and The Court hereby

stays the proceedings in this jurisdiction to enable the Agency to make such request inviting the Courts in said European jurisdiction to assume

jurisdiction of the case in accordance with Article 15.5 of the Regulation.

13. The Court notes that the Courts said European jurisdiction will be requested to assume jurisdiction of this case by the Agency within six weeks of

the date of the perfection of this Order. I have been informed that it is the intention of the parents to return to said European jurisdiction to be close to

the child for the purposes of bonding with the child.

14. If the courts of said European jurisdiction either decline the invitation of the Agency to assume the jurisdiction of the case or do not indicate their

willingness to do so within the time limited of six weeks then this Court shall continued to exercise jurisdiction in accordance with Articles 8 to 14 and

Article 13.

15. The Section 17 and Section 18 proceedings are hereby stayed pending the determination of the request under Article 15 and should be re-

entered by the Agency before the Court to determine the balance of the enquiry.

HHJ Rosemary Horgan 18 January 2019.