District Court grants Care Order for two children under Section 18 Child Care Act 1991 despite foreign jurisdiction issues.

[2012] IEDC 10

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

BND & DN

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

22 May 2012

1. This is an application for a Care Order under section 18 of the Child Care Act, 1991 in respect of Child 1, who is 12 years old, and

Child 2, who is 11 years old.

2. Both children were born in Country 1. Their mother is from Country 1 and their father is from Country 2. They have had a

peripatetic childhood, at times living in the joint care of their parents in Country 1, then with their grandparents in Country 2, then in

the care of their father in Country 1, and for a period in care in Country 1. They then lived again in the joint care of their parents in

Country 1 under supervision of a local Court Order in Country 1.

3. The children were brought to Ireland by their mother in breach of a Country 1 Court Order in June 2010.

4. The children resided with their mother and her partner (also from Country 1) in Ireland from June 2010 until February 2011. The

family came to the attention of the HSE in December 2010. The HSE provided family support service and on-going supervision arising

from identified risks of alcohol use and poor supervision of the children.

5. The HSE and the Irish Courts were unaware of the existence of the Country 1 Court Order at this time. The account of prior care

of the children outlined by the mother proved to be inaccurate.

6. The authorities and Court in Country 1 are now fully aware of the presence of the children in Ireland and the making of protective

orders by the Irish Courts in respect of the children. They have not lodged a Request for Return of the Children to Country 1 pursuant

to the Country 1 Court Orders. The Court has been informed that the HSE’s contact with International Social Services has established

that jurisdiction in this matter to address the care needs of the children has been conceded to the Irish court.

7. The children’s mother is represented within these proceedings and has indicated, through her solicitor, her consent to the making

of the Orders in the best interests of the children and having regard to the expressed wishes of the children. While of Country 1

nationality, her habitual residence is within the local jurisdiction of this Court.

8. The children’s father has not taken part in the proceedings though he was in contact with the HSE and also maintains some

contact with the children. His habitual residence is in Country 2. He originally proposed that the children would be returned to his

care; however, this request is in abeyance. He has now expressed the view to HSE social workers that he believes the best interests

of the children are served by staying in care in Ireland.

9. The children were appointed a Guardian Ad Litem (“GAL”) to represent their separate interest in the proceedings. The GAL is

represented by her solicitor.

10. The children’s first language is that of Country 2 and their second language is that of Country 1; both now speak English

proficiently. These are remarkably bright and talented children. I have met them with the GAL and their social worker. They love both

their parents and wish to retain links and regular contact and access with both their parents. The children have regular access with

their father in Country 2 through Skype, and have direct access with their mother, although they would like that contact to be more

regular as they are worried about her. They wish to remain in their current foster placement for the foreseeable future and until they

are 18 years old.

11. The issue of jurisdiction of this Court to make long term orders in respect of the children arises by virtue of Article 10 of Council

Regulation 2201/2003 which states that in the case of wrongful removal or retention, the courts of the Member State where the child

was habitually resident immediately before the wrongful removal or retention shall retain jurisdiction until the child has acquired a

habitual residence in another Member State and each person, institution or other body having rights of custody has acquiesced in the

removal or retention.

12. I have been informed that the District Court in Country 1 has stated that they would not claim jurisdiction in respect of the

matter, considering that the HSE and this Court were monitoring the welfare of the children. I am also mindful that this might be

viewed as less than a direct concession of jurisdiction in relation to anything more than taking protective measures (within the

meaning of Article 20 of the Regulation).

13. However, the children have now resided in Ireland for more than a year and have settled in their current foster placement and

have expressed the desire to stay here in their current foster placement in Ireland. Furthermore, a Request for Return has not been

lodged before the competent authority in Ireland. I am also assured that the District Court in Country 1 is fully aware of the nature of

the proceedings before the Irish court and the orders being sought by the HSE in respect of the children; accordingly, I am entitled to

assume that this court now has jurisdiction to make a full Care Orders in respect of the children pursuant to Article 10(b)(i) of the

Regulation.

14. Furthermore, I have been assured that International Social Services in Country 1 has been in full communication with the HSE and

has investigated the position in Country 1. Accordingly, this application proceeds with the acquiescence of the District Court in

Country 1, which made orders in this case heretofore. Accordingly, the Irish District Court also has jurisdiction to make full Care

Orders in respect of the children in accordance with Article 1(a) of the Regulation.

15. The first protective order made in this case was an Emergency Care Order made on 25 February 2011 and an Interim Care Order

was made thereafter on 4 March 2011 and renewed thereafter by successive Interim Care Orders pending the hearing of the full Care

Order today.

16. The Court was informed that the matter would proceed on consent of both parents.

17. The social worker gave evidence as per her report at Tab 1 of the booklet of reports before the Court. She affirmed that the

contents of same were true and having regard to the facts therein stated that her professional opinion was that the threshold criteria

were met and continue to be met pursuant to sections 18(1)(a), (b), and (c) of the 1991 Act.

18. Evidence was also provided establishing that the current foster carers are approved foster carers and that it is anticipated that

the fostering matching assessment will be completed resulting in the children remaining in this placement.

19. The GAL also gave evidence as per her report to Court at Tab 6 of the booklet of reports before the Court. She affirmed that the

consents of same were true and accurate and that she supported the HSE’s application which was in accordance also with the

children’s wishes.

20. Evidence was also given that the children require therapeutic supports and interventions as outlined in paragraph 7.5 of the GAL’s

report to Court.

21. The GAL noted that the children in this case are particularly mature for their years. She expressed satisfaction with the Care Plan

for the children but remained concerned that:

(a) those therapeutic interventions identified should commence as soon as possible, and

(b) that a review would take place at each child’s sixteenth birthday.

Decision

22. Having read the reports and booklets furnished and the GAL Reports and the evidence of the social worker and GAL, I am satisfied

that the threshold criteria are met under section 18(1)(a), (b), and (c) and that having considered the evidence, I am satisfied that

the HSE made reasonable efforts to prevent or eliminate the need for the children coming into the care of the HSE, including support

interventions between December 2010 and 26 February 2011 and indeed until of the hearing of this matter today. 23. In light of the

ages of the children and their care requirements, and having regard to the facts of the case, I am satisfied that neither parent has

sufficient parental capacity or ability at this time to provide appropriate and consistent care for the children or meet their individual

needs as identified by the evidence for the duration of their minority. Accordingly, a proportionate response to the legitimate aim of

ensuring their welfare, and bearing in mind their wishes and feelings, is to make a Care Order until each child attains the age of 18

years.

24. I note the consent of the parents in this regard to the making the Order.

Section 37: Access

25. Access, according to section 37 of the Child Care Act 1991, shall be as follows:

a) Access shall be at the discretion of the HSE and within the parameters of section 37. Frequency of access to be

within the parameters to be agreed between the parents and the HSE. Access must meet the needs of the children

and parents and having particular regard to their heritage from Country 1 and Country 2.

b) Access should to take place in a child centred venue and locations to allow the child/children and their parent(s)

maintain a good quality parent/child relationship notwithstanding the making of the care order including (in the case

of indirect access by the father) through the use of Skype.

Section 47: Directions

26. The Court, pursuant to section 47 of the Child Care Act 1991, makes the following directions.

1. That the Placement Committee considers the outcome of the fostering assessment process be completed at the

earliest opportunity and in any event within six months of the date of this Order.

2. That the Court reviews the case on or before 21 November 2012 to ensure that the current Long Term Foster

placement has been matched and approved, and the therapeutic interventions have been approved and put in

place. That updated Care Plans are to be filed in Court as approved by the GAL. That the GAL is to remain engaged

until this happens and thereafter the GAL is to be discharged with the usual order as to reasonable costs, such

costs to be taxed in default of agreement.

3. That the Case is Re-Entered before the Court and the Guardian re-appointed four weeks before the date of re-

entry in the event that:

(a) the case becomes unallocated to a Social Worker/Fostering Link worker for a period of four weeks;

(b) a planned or unplanned change of foster placement; and in the case of a planned change of foster

placement the case to be re-entered before the court before any such change of placement is made; or

(c) After Care Review (on 16th birthday of each child) to assess After Care Services planning and

provision.

4. That the HSE provides all appropriate translation services to each of the children’s parents to enable them to

meaningfully engage in Care Review Meetings and all meetings with the HSE regarding their children.

5. That the HSE takes all steps necessary to ensure that the children receive the therapeutic interventions and

services set out in the Care Plan filed in Court and as recommended by the GAL at paragraph 7.5 of her Report to

Court.

6. GAL to be provided with access to all HSE files on re-appointment and re-entry of this case before the Court.