Irish court dismisses appeal, affirming transfer of child care jurisdiction to English courts under The Hague Convention.

Record No: 2025/91 Neutral Citation: [2025] IECC 9 AN CHÚIRT TEAGHLAIGH CHUARDA

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)

AND IN THE MATTER OF A. A, A CHILD, WHO WAS BORN

ON 1 SEPTEMBER 2024

Between:

B. A.

APPELLANT AND CHILD AND FAMILY AGENCY, & THE GUARDIAN AD LITEM MARIE LOUISE MC GOVERN

RESPONDENT(S)

Judgment of her Honour Judge Jennifer O’Brien delivered this 30h day of July 2025

1. This case comes before the court by way of an appeal from a decision of the District Court delivered on 14 March 2025. In a carefully reasoned decision, Judge Clancy granted the relief sought under Section 28 of the Child Care Act 1991 and Section 8 of the Protection of Children (Hague Convention) Act 2000 directing that a request be made to the Courts of England and Wales under Article 8 of The Hague Child Protection Convention (“The CPC”) that those courts assume jurisdiction in the matter, as well as for ancillary orders. This court had the benefit of legal submissions on behalf of each party. The court also heard evidence from the appellant mother and from Ms. Sarah Byrne, the child's social worker. In reaching my decision I have had regard to the oral evidence, the written submissions and to the case law submitted on behalf of each party.

2. By way of background on 26 August 2024, the appellant mother, a pregnant UK national, arrived in Ireland from the United Kingdom. Less than a week later she gave birth to her daughter A, born on 1 September 2024 in the Coombe Hospital, Dublin. On 10 September 2024 an interim care order in respect of A. was granted by the Dublin Metropolitan District Court and thereafter extended on a number of occasions. A Guardian ad Litem was appointed to represent the interests of A by the same order of 10 September 2024. Following a number of adjournments, the Article 8 application was listed for hearing which took place on 24 February 2025. A decision was reserved until 14 March 2025. This court heard the appeal from that order on 16 July 2025 and handed down its decision on 30th July 2025. Much of the background to this matter can be gleaned from the written decision of the District Court and as such I do not intend to reiterate same here.

3. In the course of her evidence to this court the appellant mother outlined that she disagreed with the decision of the District Court, and she also outlined the trauma she experienced during what she described as the forcible adoption in the UK, of her first son K. She gave evidence of the lack of mental health support received by her in England. She gave evidence of harassment from her neighbours and the significant trauma she experienced in consequence of her sister’s murder in 2012. She said that she had no contact with K. whatsoever and that she doesn't know what he looks like.

She said she has no knowledge of his whereabouts since he was adopted in England.

The appellant went on to describe her pregnancy and the birth of A. in Ireland and she gave evidence that she availed of private healthcare in England prior to A.’s birth.

She also stated that she no longer has accommodation in the UK, and that she has neither a job nor social welfare benefits in that jurisdiction. She gave evidence that the high level of vulnerable person reports arose in consequence of the distress she experienced on losing her son. She gave evidence that she wasn't given any mental health supports during that time. She said the Child and Family Agency had raised concerns about mental health and she agreed to participate in a psychiatric assessment however she said that no progress has been made in this regard. She went on to describe the supports that she is currently availing of in the Irish system which include seeing a psychiatrist every other week, a weekly appointment with a psychologist and attendance at a support group together with twice daily zoom support calls and a peer support worker. She also attends a program that is run by Aware. She said she attends counselling with the Northside counselling service, and she has signed up with wellbeing recovery college. She said that she is engaging in self-help and building up stress tolerance. She gave evidence that she has the appropriate supports in this jurisdiction. The appellant confirmed that she has a diagnosis of borderline personality disorder and that she's currently residing in a hostel however she believes she has secured a one-bedroom apartment. She has applied to Dublin City Council for family accommodation which will depend on the stage of her current pregnancy. She gave evidence that she's engaging with the social work team at the Rotunda. She confirmed that she is unsure how long the accommodation process will take but she is applying through the HAP scheme.

4. She gave evidence that she has a GP and she in engaged in joint antenatal visits between the hospital and the GP service. She also has a referral for cardiology, and she is attending her antenatal visits in respect of her child who is due on 1 November 2025. She gave evidence that she attends the mental health team at the Maternity Hospital.

5. She gave evidence that A. was christened in Ireland earlier this year and that the appellant’s father attended from the UK. She recounted how the child’s father kicked her out of his house once she informed him of her pregnancy and asked her to arrange for a termination. He didn't want to be named on A.’s birth certificate and neither he nor any member of his family have sought to make contact with the appellant mother, nor have they sought to make contact with the child at this point in her life.

6. The appellant recounted that she has employment at a pet sitting agency and that she's obtained a PPS number in Ireland and that she sees her daughter A. twice each week, that it was five times each week, but it was reduced and that those orders are currently under appeal. She confirmed that she is seeking further access to A., and she would also like to have a freer access regime which would involve taking A. for walks in the park and on trips outside. She said that she's not a flight risk as she wants to stay in

Ireland, and she confirmed that she's offered to surrender her phone, and her car keys should such access be granted. She gave evidence that she is concerned that if A.’s case is transferred to the jurisdiction of the UK that A. will be uprooted and put into a system that's absolutely brutal and she also fears that her mental health will get worse as she feels unsupported in that jurisdiction and she feels that the transfer of jurisdiction will result in a forced adoption which she does not believe is either in the best interests of A. or of herself, based on past experience. She said she's seen this situation with other people and that a child is just taken at birth. She said that her fears are based on how she knows the system in England works. She said that while she gave different evidence in the District Court, she can no longer answer the question as to whether she would relocate to England if the case were transferred to the UK. She said that a transfer of the case puts her in an horrific situation where she would have to start her life again with no job, no home with absolutely nothing and desperately battle for mental health support. She said it was an impossible situation, and she has no idea what she would do.

7. She gave evidence that she does not believe that A. will be in a position to avail of family supports in the UK. She said she doesn't understand how K. can be brought into the equation given that he has been adopted. She thinks it's unrealistic for the Child and Family Agency and the guardian ad litem to posit that A. would have a relationship with K. if jurisdiction were transferred. She gave evidence that she doesn't see that happening. She gave evidence that she believes A.’s best interests would be served by staying where she is, that she has become settled and that her mother is becoming more settled, and she envisages being able to take care of her daughter with the right supports around her.

8. Under cross-examination, Ms. A. was asked whether she accepted the affidavit of Ms.

Sarah Byrne with regards to the witness’s ongoing emotional instability, antisocial behaviour and autism. The witness disagrees that she suffered from any antisocial behaviour, and she said that she was never diagnosed with this. A statement to this effect was transferred into her notes and has been repeated but there has never been such a diagnosis made. Ms. A. stated that the psychiatrist who carried out the assessment for the childcare proceedings in the UK only ever met her once by zoom.

Ms. A. confirmed that she would prefer an Irish psychiatrist to assess her. It was put to the witness that this could not occur without considerable disclosure being made from the UK services.

9. Ms. A. described that she was not homeless that she was living in a private hostel and that she leaves in the morning and returns in the evening. Her GP has written a letter seeking that she be facilitated in using the room for rest purposes during the daytime.

Ms. A. confirmed that she has a one-bed apartment in Dublin 9 and that she found it online and the previous tenants have moved out and she has been accepted by the letting agency. She is not clear as to how long the HAP process will take. It was put to the witness that she would have greater continuity if her medical care was provided through the UK. Again Ms. A. denied that it was likely that A. would have contact with either her brother or her father if she was returned to the UK. It was put to the witness that the Courts in England are better placed to hear all the evidence needed as the various witnesses and services are in England. The Irish court wouldn't get a full view, and it was put to the witness that it would be in A.'s best interest to have the matter resolved in that jurisdiction. Ms. A. responded that there was a lot that had occurred in K.'s case that she disagreed with, and she finds that the old information is rehashed every time.

10. The witness reiterated that she was in an impossible situation in the event of a transfer of jurisdiction to England. Ms. A. stated that A. needs her mother and while the courts have decided that she should be in in care Ms. A. does not agree, and she feels that with the correct mental health supports that she would be in a position to care for her daughter.

11. Under further cross-examination, by counsel for the Guardian ad Litem, it was put to the witness that following K.’s birth she was monitored in a mother and baby home by a team of professionals in England and as part of that hearing the psychiatrist had diagnosed her with borderline personality disorder, antisocial personality disorder and autism. The witness stated that she was never diagnosed with antisocial personality disorder and further that her diagnosis with autism only took place after

K. was adopted. The witness said that she was concerned that these mistakes seemed to get replicated repeatedly and become gospel in the context of the litigation. It was put to the witness that there would be difficulties in any event of inputting the correct information before the Irish Court given that these matters all occurred in England.

The witness stated that there were many inaccuracies in the reports such as the allegation that she had recommenced self-harming when in fact a cat had scratched her face. She said regarding alleged alcohol use, that all the tests carried out were clear and some of the information in the forms were simply copied and pasted to various sections and that it didn't make any sense. It also included an allegation that Ms. A. was on drugs however there was no positive drugs test. She said that there were several little things that were not correct and accurate. Ms A. said that she's had her difficulties in the past, but it doesn't mean that people can't parent their children.

12. She gave evidence that in the mother and baby unit (in England), following K.’s birth, she was criticised for communication issues, but this had occurred before her autism diagnosis was made. She said she was pulled up on language and what she had said.

She indicated that this was a feature of her autism, and it was not the way she meant her communications to come across.

13. At this point counsel made a reference to the doctrine of issue estoppel and indicated that Ms. A. may not be in a position to reopen the findings that had already been made by the English courts in the previous case. The court requested further information as to whether there would be a new hearing ultimately if the matter transferred to the UK and whether fresh findings could be made in relation to this particular child and the current circumstances. After lunch counsel for the guardian ad litem gave the court a copy of the decision of Baroness Hale in Re B (CA Proceedings) (Issue Estoppel)

[1997] 1 FLR, which is considered later in this decision.

14. The witness was cross-examined about her involvement with social services prior to K.'s birth and she said that there was no pre-birth assessment as such and that her engagement with them was limited. The witness said there were a number of reasons that she departed the UK towards the end of her pregnancy with A. including the drama there with her sister dying, harassment from neighbours and threats from K.’s dad. She said that she was concerned about social services as she'd seen it happen to many other people.

15. Ms. A. was cross-examined regarding the unsanitary conditions of her home, and she acknowledged that the statements in those reports were correct however they were made without context. For instance, she was accused of animal cruelty however that case was dropped, and the charge dismissed. Yes, it is true that there were concerns about whether there was animal cruelty but ultimately there was no basis for such concerns. There were concerns about alcohol abuse and yet Ms. A. said the alcohol tests came back clear. She said there was reference to a criminal record for violent offences however this was in respect of an incident where she was unwell, and she had gone to the emergency department, and they refused to admit her, and it resulted in an assault of hospital staff when in reality the witness was trying to gain access to mental health services through the emergency department. It was put to the witness that many of these things arose after the judgement in the UK Courts and the point is that the issues happened in the UK. Ms. A. said she required mental health services which were not available to her and that she was depressed as her child had been taken away. Ms. A. said that K.’s family know of A.’s existence, and they haven't sought to make contact at this point. Ms. A. confirmed that she was never in care herself. During her evidence, she referred to having attended boarding school in the UK. It was put to the witness that it may be better for A. to be placed with someone in her family and that these people are all living in the UK. Ms. A. responded that ultimately it would be better for A. to be with her mother provided her mother had the correct supports.

16. The court also heard from Ms. Sarah Byrne, social worker and much of her evidence is replicated in the affidavit sworn in the proceedings. Firstly Ms. Byrne gave evidence that Ms. A. doesn't engage with social services and does not respond to their communications with her. Ms. Byrne said she wasn't aware that Ms. A. was on the Dublin City Council housing list. She said there was no prior planning to Ms. A.'s relocation to this jurisdiction either in terms of accommodation or medical services.

She confirmed that Ms. A. has made contacts with various services in Ireland since arriving here however she could make these contacts with similar services in the UK where she has her mother and indeed her mother has put herself forward in the context of offering a placement for A.’s care. She confirmed that A.’s father had come forward in the UK for DNA testing but had subsequently withdrawn from the process.

She went on to give evidence that from A.’s perspective, involvement from her father and her father's side of the family might be available. She confirmed that the court in the UK was better placed to deal with the matter for example, if there was a possibility of a placement for A. with K. It would be beneficial for A. to have a sibling relationship even where access only would be provided to K. There was an information deficit in this jurisdiction. It would be of a benefit for the court to have the full background prior to determining the matter. The current placement was a transition planning as they await the decision of the court in the transfer proceedings.

She said that the independent psychiatric assessment had not been carried out as they were awaiting the outcome of the Article 8 proceedings. She said this was a lengthy assessment process and it was preferable that it was carried out in whichever jurisdiction is dealing with the matter. The witness was cross-examined on these issues and in particular the failure to carry out any psychiatric assessment of Ms. A.

notwithstanding ten months had elapsed.

17. Considerations: As set out in the submissions filed on behalf of each party which are agreed in terms of the applicable law in most instances, there are a number of conditions before a request to transfer jurisdiction should be made under Article 8 of the CPC. First, at least one of the conditions of Article 8 (2) of the CPC must be satisfied. In the case of A., Article 8 (2)(a) is satisfied since she is the child of a British national otherwise than by descent and is therefore a UK national. Article 8 (2)

(d) of the CPC is also satisfied. She has a substantial connection to England since her parents are UK nationals, her sibling is there, and her mother lived there at all times up to August 2024. Her father continues to reside in England. Secondly, under Article 8 (1) of the CPC the District Court, and now this Court on appeal, must conclude “by way of exception” that the English courts are “better placed to assess the best interests of the child”. An English court may only accept jurisdiction if “it considers that this is in the child's best interest.” As such it follows that it makes sense that some consideration of those best interests falls to be made by the requesting court, here the District Court and now the Circuit Court on appeal. It is agreed that the case law governing article 15 of Council Regulation 2201/ 2003 provides useful guidance. The leading case is the Child and Family Agency v JD case C428/ 15.

There the mother was a UK national and diagnosed with antisocial personality disorder. Her first child was placed in care in the UK after she had physically abused it. She became pregnant again and moved to Ireland on 29 September 2014 after the local authority in the UK concluded that her expected child should be the subject of care proceedings on birth. Her second child was born in Ireland on 25 October 2014 and was taken into care soon after birth. The CJEU judgment clarifies a number of key points as follows:

18. First, the CJEU confirmed that article 15 could be invoked by an Irish court in childcare proceedings even though under UK law the English Courts could only act if an application was brought by a local authority to take the child into care.

19. Secondly, the CJEU then pointed out that the general rule of jurisdiction is in Article 8

(1) of Council Regulation 2201/ 2003 and based on the habitual residence of the child and that there was a strong presumption in favour of a court maintaining its own jurisdiction.

20. However, it is clear that these remarks were made in the context of a case where the referring court had jurisdiction by virtue of Article 8 of Council Regulation 2201/2003. By the time that the CJEU gave its judgment, the child was just over two and had been all its life in Ireland. But in the present case, for reasons set out above, it is submitted that A. is unlikely to have an Irish habitual residence. This court does not necessarily agree with that proposition in the sense that A. has never resided anywhere else. Having said that and without making a finding as regards habitual residence, this court agrees that the Irish courts also have jurisdiction based on A.’s presence in the State. As such this court is not persuaded that the presumption in favour of the Irish courts retaining jurisdiction is weaker. Nonetheless it is incumbent on this court to consider the reasons put forward in support of a transfer of jurisdiction.

21. Thirdly, turning to the criterion of the court best placed to hear the case, the CJEU stated:

“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 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 which might be applicable by the court of that other member state, if the case were transferred to it. If the court were to take that into consideration, doing so would be in breach of the principles of mutual trust between member states and mutual recognition of judgments that are the basis of regulation number 2201/2003.”

22. The Child and Family Agency and the Guardian ad Litem have each submitted that the English Courts are better placed to hear the case and therefore assess the best interests of the child because Ms. A.'s previous child was taken into care in England.

The agency does not have sight of the assessments that were conducted at that time.

Nor are the authors of those assessments, and any other witnesses, compellable in Ireland. In circumstances where the evidence of the English police involvement and charges have been brought in England, this is relevant. The Child and Family Agency does not have records of who this involvement was with. In any event they are not compellable here. Ms A. has been the subject of social work assessments by social workers in England. This involved regular meetings with her as well as liaising with other professions involved with the family. These social workers and those other professionals are in the United Kingdom. Ms. A. has had significant involvement with mental health services in England. Although she denies this in her evidence.

Again, the Agency does not have this information, and the Irish courts cannot compel those involved. Fourthly, regarding the best interests of the child concerned, the CJEU stated:

1. “The requirement that the transfer must be in the best interest of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another member state is not liable to be detrimental to the situation of the child concerned.

2. To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familiar, social and emotional attachments of the child concerned in the case or on that child's material situation.”

23. It is submitted on behalf of the Child and Family Agency that A. has a sibling in England and that the Agency has little details regarding this and so is poorly placed to explore the possibility of joint placement or sibling access. A.'s father is in England although currently not involved he may wish to have contact in the future. There's also the possibility of relative access in England, but again Irish social services are not best placed to deal with this. All the professionals familiar with the family are in England albeit social workers, police, lawyers and judges. It is submitted that this institutional memory and experience are likely to lead to better decision making for A.

While transfer of jurisdiction does not necessarily entail transfer of the child, it is submitted that A. has only been with her foster parents since September 2024 and that this is a relatively early stage of placement. It is submitted that a decision on her future care should be made as soon as possible. The Agency is of the view that the case should be transferred in its entirety. Lastly, the CJEU stated that the motive of a parent in coming to Ireland or the effect of transfer on a parent’s right of free movement was irrelevant.

“Consequently, the possible effect of such a transfer on the right of freedom of movement of other persons concern, including the mother of the child in question, should not be taken into consideration by the court having jurisdiction, provided that there are not liable to be adverse repercussions on the situation of that child. The same applies with respect to the reason why the mother of the child exercised her right of freedom of movement, prior to the court having jurisdiction being seised.”

24. In the instant case it is submitted that there is no effect on the child's free movement in the sense that by virtue of being born in Ireland to a British parent A. will have both Irish and British citizenship and as such will be entitled to a free movement in both the UK and the EU.

25. MacMenamin J who gave the judgment of the Supreme Court in JD [2017] IESC 56 summarised the practical consequences of the CJEU reference as follows:

1. “It is the duty of the court which first deals with a childcare matter with international dimensions, to consider the question of whether it is the court best placed. In the instant case, and in many other cases, this will now be the District Court. It follows that it would be no longer appropriate that a separate application in that regard should generally be made to the High Court, where there are already District Court proceedings in being.

2. While motivation for parental movement from one jurisdiction to another is to be excluded from the assessment, unless those considerations might have adverse repercussions on the situation of the child. The corollary of this, however, is that, if it is concluded that there may be adverse repercussions on the situation of the child, this is a factor which must be taken into account.

3. The court must assess the issues underlying the question of proximity. In general, it is in the interests of the child that his or her case be dealt with in the court of their habitual residence, because this will be the jurisdiction with which he or she has the greatest proximity. While Article 15 recognises that, in some exceptional cases, the application of this general principle would not protect and ensure the best interests of the child, there is a “strong presumption” that this arises under Article 8. However, this presumption can be rebutted if there is evidence of a sufficient degree of proximity between the child and another member state so as to render the exercise of jurisdiction, pursuant to Article 8, inappropriate, and contrary to the best interests of the child.

4. In order 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 particular connection with another member state. If there is no such connection, there cannot be a transfer. The existence of a particular 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 particular connection. If such a particular 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.”

26. By the time the Supreme Court gave its judgment on 20 July 2017, the child in the JD case was almost three having been in care since shortly after birth. The Agency did not proceed with its Article 15 application in the circumstances.

27. P v The Child and Family Agency is a case that did proceed to Article 15. Ms. P had a previous child, R. in the UK. R had sustained a non-accidental injury in her care. Ms.

P came to Ireland when she was pregnant with her next child. That child, J was born on 11 July 2016. Ms. P had a sister who lived in Dublin, with whom she was in regular contact. Ms. P also had a brother in Dublin. The child was taken into care shortly after birth by the Agency and placed with foster carers who were not able to care for the child long term. The Agency applied for the English Courts to assume jurisdiction under Article 15. That application was successful in the District Court.

Ms. P sought to judicially review the District Court's decision in the High Court but was unsuccessful. As of the date of the High Court hearing, it did not appear that any Child Protection Authority in the United Kingdom had any intention of taking responsibility in respect of J. Also, R’s adoptive parents were not in a position to care for J. All social work and medical teams involved in J’s care were based in Ireland.

Judge Barrett of the High Court agreed that the UK Courts were better placed to hear the case because of the greater availability of evidence in the UK regarding R. The mother argued that transfer of the child would involve transfer of jurisdiction and that this was not in J’s best interest. Barrett J rejected the view that the transfer of jurisdiction entailed the transfer of the child. He held that these were severable. As set out in the submissions this underscores a crucial point, Article 8 CPC, like Article

15 Council Regulation 2201/2003, involves making a request to transfer jurisdiction.

It will then be for the English courts to determine whether to accept jurisdiction in the best interests of the child and, if they do, to decide whether or not to order the return of the child. The request by the Irish courts starts the process but does not end it.

28. On behalf of the appellant mother, it is submitted that the child is habitually resident in Ireland and that in fact, she has never resided in the UK. On behalf of the appellant mother, it is denied that sufficient conditions have been satisfied to permit the CFA to succeed on this application. It is noted that the CFA accepts that A. has Irish citizenship. It is submitted that as A. is in the care of an Irish statutory agency, she has no need to assert her UK citizenship. Secondly, the appellant mother has moved to Ireland and attends to reside here going forward. Thirdly, it is submitted that A. has lived all her life in Ireland, and that the tender relationship between her and her foster parents is increasing in quality every day. The appellant mother denies that the UK courts are “better placed to assess the best interests of the child”. She says that she has settled into a routine of positive engagement with a number of stakeholders including access workers, support teams, the guardian ad litem, medical staff, social workers and the CFA. It is submitted this is a clear indication that she wishes to work closely with the Irish social work system and the Courts. It is stated that this stands in contrast to the unfortunately broken and strained relationship with the social work system in the UK. It is submitted that A. has very strong ties to this jurisdiction as she has lived all her life in Ireland, she was christened in Ireland in February 2025, she is an Irish citizen, she has a PPS number, that is an Irish Social Security number, she does not have a passport as the appellant mother was requested by the CFA not to apply for one, she's been cared for by Irish foster carers in these most sensitive and tender early months of her life, her biological mother now lives in Ireland and her biological father is not in her life. Further, it is submitted that Irish social workers have been working with A. since her birth and clearly know her better than any social workers in England and Wales.

29. With regard to requests for assessments and other witnesses in Ireland, it is submitted that it is open to the CFA to request those documents that they refer to and they have in fact already been in contact with social services in the UK and received information from them in respect of this case. Furthermore, whilst the witnesses may not be compellable, video link evidence could be availed of and would be convenient to any witnesses.

30. The appellant mother refutes that any criminal charges were brought against her and as such that English police evidence is not required in the case.

31. While it is accepted that A. has a half sibling in England it is submitted that no weight can attach to that fact as the appellant mother is not permitted to have any contact with K. and by default it is submitted A. would not automatically have any contact with him as his whereabouts are unknown to the appellant mother. It is further submitted that none of the professionals that previously were involved with the appellant mother have had any contact with A. nor are they familiar with her case or her needs. It is submitted that all of A.’s professionals are based here in Ireland including social workers, doctors, guardian ad litem and other health support professionals. It is submitted that the professionals referred to by the CFA may have had contact with the appellant mother and that their evidence may be called through video links. The possibility of relative access has also been referred to by the CFA, however it is submitted on behalf of the appellant mother that she has categorically stated that she has little or no contact with any member of her actual family in England. She has stated that she has limited contact with her own father but is unable to rely on him and therefore it is unlikely he would be available for A. Furthermore, in relation to A.’s birth father, he has no involvement in her life and therefore it is unlikely that she would have any contact or access with him.

32. It is further submitted that the fact that A. is in a short-term placement is not a sufficient reason for jurisdiction to be transferred to England and Wales. It is submitted the CFA are well aware that applications such as this take time to make their way through the courts and alternative plans can be made and placements sourced, and it is not an absolute given that the court will transfer the jurisdiction and therefore the CFA should be parallel planning. Such, it is submitted on behalf of the appellant mother that the best interests of the child can be gleaned more readily by the Irish courts for the reasons set out above. It is further submitted that transferring the case out of the jurisdiction would be of no added value given that A.'s Irish foster parents, Irish social work department and Irish guardian ad litem are all located in this jurisdiction.

33. On behalf of the appellant mother reference was also made to the criticism the UK has received for pursuit of a forced adoption policy. It is submitted that this can be considered as an issue concerning procedure rather than the substantive law. The appellant mother is concerned and fearful that A. would quickly be subjected to a forced adoption as happened with her other child in 2023. Given that the appellant mother wants to have a meaningful relationship with A. this court should consider the procedural deficiencies which the respondent mother would face in contesting these proceedings in the UK.

34. It is submitted that in considering any detrimental effects on the subject child the court should consider that her biological mother is now residing in Ireland and access was occurring five times a week that had reduced to three times a week. Access between mother and child would be difficult if transferred to the UK and would be detrimental to the child at her young age.

35. It is the appellant mother’s fear that the starting of the process will lead to the subsequent second phase of her child being returned to the UK and then being subjected to adoption in the UK. While the decision to transfer the proceedings to the UK does not necessitate the transfer of A. to the UK, A.’s right of free movement and to remain in the territory of the European Union must be considered as a possible consequence of a decision to transfer. As such, on behalf of the appellant mother it is respectfully submitted that this honourable court should decline to grant the application sought by the applicants and retain jurisdiction of these proceedings which relate to an Irish born child, living with Irish foster parents, whose biological mother is living in Ireland and where A. has a habitual residence here in Ireland. The child has been in the care of the state since September 2024, all of the while with the Irish social work team and supports dealing with her and her care and therefore the Irish system is best placed to deal with this matter.

Decision

36. In all the circumstances of this matter having heard the evidence and the submissions offered on behalf of each party, the court is satisfied that this is an appropriate case to make an Article 8 request given the background facts set out in this decision and in the earlier decision of the District Court. It is confirmed that the child had a guardian ad litem. It is confirmed that the mother was legally represented by a solicitor and counsel. At this juncture given the lapse of time the court assesses that the child may now have acquired habitual residence in the jurisdiction of Ireland albeit that the earlier District Court proceedings and indeed these proceedings were based on the presence of the child in Ireland. In the instant case the court finds that while the child may now have a habitual residence in Ireland, the child has dual nationality in both Ireland and England. England was the habitual residence of the child's mother at least until August 2024. As such in the case of A. Article 8 (2) (a) is satisfied since she is the child of a British national otherwise than by descent and is therefore a UK national. Article 8(2)(d) is also satisfied. She has a substantial connection to England since her parents are UK nationals, her sibling is there, and her mother lived there at all times up to August 2024. Her father continues to reside in England. Under Article 8(1) the court concludes by way of exception that the English courts are “better placed to assess the best interests of the child” and this court finds the transfer of jurisdiction is in the best interests of the child. The purpose of the convention the test of being “better placed to assess the best interests of the child” involves both of these criteria. This is also apparent from the preamble to the CPC which states that “the best interests of the child are to be a primary consideration.” The court finds that even if A. has an Irish habitual residence that jurisdiction should still be transferred for the reasons set out below. This court must determine whether the transfer of the case 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 the Irish courts. In that context, the court having jurisdiction may take into account among other factors, the rules of procedure in the other member state, or in this instance, the UK, such as those applicable to taking evidence required for dealing with the case. However, the court having jurisdiction should not take into consideration the substantive law. In the present case the court finds that the English Courts are better placed to hear the case and therefore assess the best interests of the child because Ms. A.'s first child was taken into care in England. The Agency does not have sight of the assessments that were conducted at that time. Nor are the authors of the assessments or any other witnesses compellable in Ireland. Further, where the evidence of English police involvement and charges have been brought in England, this is relevant and again the court finds that the Child and Family Agency does not have these records, and the relevant witnesses are not compellable to the Irish courts. Given Ms. A. has been the subject of social work assessments by social workers in England, the evidence of these social workers and other professionals will only be available to the Courts in England. Likewise, any medical records available in respect of Ms. A. are held in the UK. Ms A. alleged that her diagnosis with autism was only made after the childcare proceedings in England had concluded. This may have a bearing on Ms A.’s ability to seek a fresh finding in reliance on the decision of Baroness Hale in Re B. Again, each party to the litigation will need to be in a position to compel attendance of witnesses, all of whom are located in the UK.

37. The court is satisfied that the transfer of the case to another member state or in this instance, to the UK, is not liable to be detrimental to the situation of the child concerned. All of the child's relatives reside in the UK and while she has undoubtedly formed an attachment with her foster parents and her mother in this jurisdiction, her extended family connection is in the UK. A. has a sibling in England whereas the Agency in Ireland has little detail regarding this and is poorly placed to explore the possibility of a joint placement or sibling access. A.’s father is in England and although not currently involved he may wish to have contact in the future. There is the possibility of relative access in England, but again Irish social services are not best placed to deal with this. The court agrees that all professionals familiar with the history of the family are in Englandalbeit social workers, police, lawyers and judges.

This institutional memory and experience are likely to lead to better decision making for A. While transfer of jurisdiction does not necessarily entail transfer of the child, A.

who has been with her foster carers since September 2024. A decision on her future care should be made as soon as possible. The court has not taken any account of the motive of the mother in moving to Ireland. The court notes that there's no impact on A.’s free movement rights as she's a citizen both of the UK and of Ireland. It is undoubtedly the position in the instant case that the courts of England and Wales are best placed to consider long term decisions for the protection and care of A. The court has assessed the underlying question of proximity and finds that there is a sufficient degree of proximity between the child and the UK so as to render the exercise of jurisdiction by the Irish courts inappropriate and contrary to the best interests of the child. As such the court finds that there is a sufficient degree of proximity between the child and the UK given her particular connection with that jurisdiction. The court notes that the existence of a particular connection is a gateway to the power to seek a transfer. The court has considered the degree and extent of the proximity to the other member state, or in this instance, the UK, arising from the particular connection in all the circumstances of this case. The court is satisfied that such a particular connection is established. For the reasons set out herein the court is satisfied that the courts of England and Wales are better placed to determine the matters arising in this case. The court is satisfied that transfer of the case to the courts of England and Wales would provide genuine and specific added value with respect to the decision to be taken. In considering whether there will be such added value this court has not had regard to the nature of the substantive law of the other state, other than for illustrative purposes.

The court is satisfied that transfer of jurisdiction will not have a detrimental effect on the child in the sense that transfer of jurisdiction does not equate with transfer of the child. The court is satisfied that the entirety of the case should be transferred given the extensive connection the child has with the Courts of England and Wales. It is also the case that the child's mother's connection is primarily with the UK. The court has considered the other cases relevant to this matter including P v Child and Family Agency. The court notes that Article 8 of the CPC, like Article 15 of Council Regulation 2201/2003 involves making a request to transfer jurisdiction. It will then be for the English courts to determine whether to accept jurisdiction in the best interests of the child and, if they do, to decide whether or not to order the return of the child. The request by the Irish courts starts the process but the actual determination is to be made by the Courts of England and Wales, which is a separate matter.

38. In making this decision the court has particular sympathy for the appellant mother who impressed the court as an intelligent lady who is making genuine efforts to access appropriate mental health and other supports. It is evident that the appellant was extremely traumatised by her experience with the previous litigation and factors such as the psychiatric assessment being conducted online and her subsequent diagnosis with autism following determination of the English adoption proceedings. The court notes the decision of Baroness Hale in Re B (Child Act proceedings) (Issue Estoppel)

on 1 November 1996 and notes that a court could consider whether there was any reason to think that a rehearing of an issue would result in any different finding and whether there was any ground upon which the accuracy of previous findings could be set aside. In circumstances where the appellant mother in these proceedings sought to adduce new evidence with the objective of undermining previous rulings, this is best done in the jurisdiction where these rulings were made.

39. As such, the court dismisses the appeal and affirms the order of the District Court with any variation as may be required to ensure the clarity of the request to be made to the Courts of England and Wales.

Appearances

Priscilla McAlister BL instructed by St John Solicitors LLP for the appellant mother.

Mary Phelan BL instructed by Mason Hayes & Curran for the Child and Family Agency.

Brian Barrington BL instructed by Pol O'Murchu Solicitors for the Guardian ad Litem.