Supreme Court dismisses appeal transferring childcare jurisdiction to England based on child's best interests.

THE SUPREME COURT

[Appeal No: 273/2013]

Denham C.J.

Clarke J.

MacMenamin J.

IN THE MATTER OF L.W., A MINOR BORN ON THE 25TH SEPTEMBER 2012

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

AND IN THE MATTER OF COUNCIL REGULATION (EC) No. 2201/2003 OF THE 27TH NOVEMBER 2003 CONCERNING

JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND MATTERS OF

PARENTAL RESPONSIBLITY

Between/

HEALTH SERVICE EXECUTIVE

Plaintiff/Respondent

and

M.W

First Named Defendant/Appellant

and

G.L

Second Named Defendant/Respondent

Judgment of Mr. Justice John MacMenamin delivered the 31st day of July, 2013.

Introduction

1. This is an appeal against a judgment and order of the High Court (Birmingham J.) delivered on the 14th June, 2013. The appellant,

M.W., is the mother of L.W., who was born on the 25th September 2012. In circumstances which will be outlined, the respondent

(hereinafter “the HSE”) applied to the High Court, seeking that a request be made by that Court to the Courts of England and Wales,

that those courts should assume jurisdiction in childcare proceedings concerning L.W. The application was made pursuant to Article

15(1)(b) of Council Regulation EC/2201/2003 (“the Regulation”). Birmingham J. was satisfied that such a request should be made.

G.L., who is the child’s father, raises no objection to the order being made. The mother is opposed to the application.

The Regulation

2. Council Regulation EC/2201/2003 of 27 November 2003 concerns jurisdiction, recognition and enforcement of judgments in

matrimonial matters and matters of parental responsibility. It is necessary to consider a number of its provisions.

3. Recital 12 of the Regulation provides:

“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, in particular 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”.

4. Recital 13 provides:

“In the interests of the child, this Regulation allows, by way of exception and under certain conditions, that the court

having jurisdiction may transfer the case to a court of another Member State if this court is better placed to hear the

case….”

5. Article 8 of the Regulation provides:

“(1) The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually

resident in that Member State at a time the court is seised.

(2) Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”

6. The HSE brings the application pursuant to that Article 15. It provides:

“Article 15 – Transfer to a court better placed to hear the case.

(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 the 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 courts 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 courts 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 should 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 a 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 a place where the property of the child is located and the case concerns measures for the protection of the

child relating to the administration, conservation or deposal 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 courts first seised shall decline jurisdiction. Otherwise, the courts 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. ”

The High Court order

7. The relevant portions of the High Court order are as follows:

“1. L.W., a minor born on the 25th September 2012 has a particular connection with the jurisdiction of England and Wales

within the meaning of Article 15(3) of Council Regulation EC/2201/2003…

2. The courts of England and Wales are better placed to hear any further proceedings concerning the placing of L.W., a

minor born on 25th September 2012 into public care within the meaning of Council Regulation EC/2201/2003 …

3. It is in the best interests of L.W., …that any further proceedings concerning the placing of L.W. into public care be

heard before the Courts of England and Wales within the meaning of the Child Care Act 1991 (as amended) and within the

meaning of Council Regulation EC 2201/2003.”

8. Insofar as is relevant, the order continued:

“It is ORDERED that:

1. Pursuant to Article 15(1)(b) of Council Regulation EC/2201/2003 of 27 November 2003 the High Court of England and

Wales be requested, to assume jurisdiction within a period of six weeks from the date herein, in relation to the

proceedings concerning the placing of L.W., a minor born on 25th September 2012, into public care.

2. Pursuant to Article 15(1)(a) of Council Regulation EC/2201/2003 of 27th November 2003 the Health Service Executive

be at liberty to introduce a request before the Courts of England and Wales to assume jurisdiction in relation to the

proceedings concerning the placing of L.W., … into public care in accordance with the provisions of Article 15 of Council

Regulation EC/2201/2003….

3. The Health Service Executive liaise through the Irish Central Authority and/or the Central Authority for England and

Wales and take all other necessary steps for the purpose of facilitating the request as soon as possible including seeking

the assistance of the Judicial Liaison Judge, Ms. Justice Finlay Geoghegan.

4. The in-camera rule be lifted for the purpose of permitting the Health Service Executive to convey any necessary

information and reports relating to the ongoing Child Care proceedings in respect of L.W., a minor born on the 25th

September 2012, to the Irish Central Authority and/or the Central Authority for England and Wales and/or the High Court

of England and Wales for the purposes of making the said request pursuant to Article 15 of Council Regulation

EC/2201/2003.”

Submissions of the appellant

9. On behalf of the appellant, it is said that the learned trial judge, in making a decision to exercise his discretion pursuant to Article

15 of the Regulation, erred in deciding that Article 15 was applicable to cases with a public law dimension. Counsel for the appellant

submits that there is a dearth of national case-law relating to the application of Article 15 and, particularly, in relation to its

application to public law proceedings. It is contended that the Article does not cater for a situation, as is likely to happen in cross-

border public law proceedings, where due to the change of jurisdiction, the parties to the case will also change. It is said that the

Article is restricted to situations where the same parties remain in the proceedings in the second jurisdiction. Counsel says Article 15

is to be contrasted against Article 56, which expressly applies to public law proceedings. As Mostyn J. in the High Court of England

and Wales in Re T (A Child: Article 15 of Brussels II R Revised) [2013] EWHC 521 (Fam) put it:

“The difficulty is that the wording of Art 15 would suggest that the transfer is made so that the very same parties may

litigate as parties the same lis in another EU jurisdiction. But by its very nature in a public law case the parties will alter if

there is such a transfer.”

Although the ultimate finding of Mostyn J. in that case was that Article 15 was applicable in public law proceedings, counsel for the

appellant states that this decision is presently under appeal and she contends that there is in fact no power to transfer a child

pursuant to Article 15 of the Regulation, and that therefore the order sought is moot. Counsel refers to the fact that in such other

Article 15 as have occurred in our jurisdiction, Article 56 was used in conjunction with Article 15 to facilitate the transfer of the child.

All these applications were unopposed.

10. Further, it is contended that the learned trial judge failed to consider other relevant areas of EU law particularly those relating to

freedom of movement and failed to interpret the Regulation in light of those provisions. The trial judge’s interpretation of Article 15 is

said to effectively facilitate the compulsory transfer of the child to another member state, when that child is lawfully present in this

State. The appellant claims that the transfer would result in a change of the habitual residence of the child without the consent to

the appellant, and would additionally amount to a coercive mechanism for the return of the appellant to England.

11. Counsel further argues that the High Court failed to consider or give sufficient weight to the fact that L.W. is entitled to Irish

citizenship in deciding whether the particular connection requirement had been satisfied. It is said that the fact that L.W. is a British

citizen by virtue of s. 2(1)(a) of the British Nationality Act 1981 and the father’s habitual residence is in England are not determinative

for the purposes of the Regulation. Counsel says that cases such as In Re T (A Child: Article 15 of Brussels II Revised), HSE v LG and

JJ [2013] IEHC 297 and In Re LM (A Child) [2013] EWHC 646 are all distinguishable because of their factual contexts.

12. Finally, it is claimed that having regard to the range of options available to the courts of England and Wales, in particular the

question of placing L.W. for adoption, the trial judge erred in his determination that the courts of England and Wales were better

placed to hear the public law childcare proceedings in respect of L.W., and that a transfer was in the best interests of the child. As a

preliminary to what follows, it is necessary to observe that the Regulation indicates that it is to be interpreted purposively with its

objects in mind. The primary objective is that decisions be taken having regard to the equal treatment of all children.

The applicability of Article 15 to public law proceedings

13. Recital 5 states that in order to ensure equality for all children, the Regulation “covers all decisions on parental responsibility,

including measures for the protection of the child” (emphasis added). The scope of the Regulation “covers civil law matters” as

provided by Recital 7, which have been held to extend to public law matters. Section 2 (Articles 8-15) of the Regulation sets out the

jurisdictional rules regarding “parental responsibility”. Thus, the rules on parental responsibility in the Regulation unequivocally extend

to public proceedings. This includes Article 15, as to determine otherwise would be to create an anomaly - a situation in which

Articles 8-14 of the Regulation are said extend to public law proceedings but Article 15 does not. This would be an illogical

construction of Article 15. This Article operates to facilitate a request between Member States so that a Court better placed to hear

the case may be seised regardless of the jurisdiction in which the proceedings commenced. The wording of Article 15 of the

Regulation does not preclude the transfer of public law proceedings to a court better placed and, in light of the case law of the Court

of Justice discussed below, there is no reason that this Court should interpret it as so doing. The Regulation applies as much to public

law proceedings as private law proceedings. It applies even in cases in which there may be an alteration in parties in the courts of

the requested state. In fact the matter has already been determined, and any doubts in the matter are allayed by the following

passage from Case C-435/06, where the CJEU addressed the question of the scope of the Regulation, and, in particular, whether or

not it applies to public law cases. At paras. 45-53 of that judgment, the Court stated:

“45 Since the term ‘civil matters’ is to be interpreted with regard to the objectives of Regulation No 2201/2003, if

decisions on the taking into care and placement of a child, which in some Member States are governed by public law,

were for that reason alone to be excluded from the scope of that regulation, the very purpose of mutual recognition and

enforcement of decisions in matters of parental responsibility would clearly be compromised. In that context, it should be

noted that it is apparent from Articles 1(1) and 2(1) of Regulation No 2201/2003 that neither the judicial organisation of

the Member States nor the conferral of powers on administrative authorities can affect the scope of that regulation or

the interpretation of ‘civil matters’.

46 Consequently, the term ‘civil matters’ must be interpreted autonomously.

47 Only the uniform application of Regulation No 2201/2003 in the Member States, which requires that the scope of that

regulation be defined by Community law and not by national law, is capable of ensuring that the objectives pursued by

that regulation, one of which is equal treatment for all children concerned, are attained.

48 According to Recital 5 in the preamble to Regulation No 2201/2003, that objective can only be safeguarded if all

decisions on parental responsibility fall within the scope of that regulation.

49 Parental responsibility is given a broad definition in Article 2(7) of the regulation, inasmuch as it includes all rights and

duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by

operation of law or by an agreement having legal effect.

50 As the Advocate General pointed out at point 44 of her Opinion, in this regard it does not matter whether parental

responsibility is affected by a protective measure taken by the State or by a decision which is taken on the initiative of

the person or persons with rights of custody.

51 The term ‘civil matters’ must be interpreted as capable of extending to measures which, from the point of view of the

legal system of a Member State, fall under public law.

52 That interpretation is, moreover, supported by Recital 10 in the preamble to Regulation No 2201/2003, according to

which that regulation is not intended to apply ‘to matters relating to social security, public measures of a general nature

in matters of education or health …’ Those exceptions confirm that the Community legislature did not intend to exclude all

measures falling under public law from the scope of the regulation.” (emphasis added)

The emphasised passages make the position entirely clear.

14. The question of potential alteration of parties to proceedings has also been determined and the following appears in the decision

of the Court of Justice in Health Service Executive v. S.C. and A.C (Case C -92/12).The references to “C” are to Case C-435/06:

“59. Article 2(7) of the Regulation defines ‘parental responsibility’ as ‘all rights and duties relating to the person or the

property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement

having legal effect’. That concept, which is to be given a broad definition (C, paragraph 49), includes ‘rights of custody

and rights of access’, rights of custody meaning rights and duties relating to the care of the person of a child, and, in

particular, the right to determine the child’s place of residence, in accordance with Article 2(9) of the Regulation. Under

Article 2(8) of the Regulation, ‘any person having parental responsibility over a child’ is a holder of parental responsibility.

It is of no consequence if rights of custody have been transferred, as in the main proceedings, to an administrative

authority.

60. The concept of ‘civil matters’ for the purposes of Article 1(1)(b) of the Regulation must be interpreted as meaning

that it may even include measures which, from the point of view of the legal system of a Member State, fall under public

law (C, paragraph 51). The Court has thus ruled that a judgment in one Member State ordering that a child be taken into

care and placed with a foster family residing within the jurisdiction of another Member State is covered by the term ‘civil

matters’, where that decision was adopted in the context of public law rules relating to child protection (Case C 523/07 A

[2009] ECR I 2805, paragraph 29).” (emphasis added)

The references to “legal person”, “by operation of law”, “administrative authority” and the specific references to “public law” in para.

60 of the judgment leave no room for uncertainty. In my view, the passages are self-explanatory and require no further consideration.

Accepting the approach set out by the Court of Justice, therefore, I am in no doubt that the Regulation refers to public law as much

as private law matters, and refers to children placed in institutional care or under the care of administrative authorities, such as the

HSE. The Regulation applies when the parties in the court of the requested state may alter.

Freedom of Movement

15. I turn next to the contention that the trial judge failed to consider the law relating to the freedom of movement, or to interpret

the Regulation in light of the EU law in this area. Free movement of persons across the Union is, of course, a fundamental right. It is

intended as a support for the internal market. This very concept, in fact, influences the manner in which the Regulation operates.

16. The existence of the EU’s interest and engagement in family law can be seen from Regulation 1612/68, the case law of the CJEU,

the Maastricht Treaty, and the Lisbon Treaty itself. The goal of free movement was supplemented by the transfer of Title IV into the

Treaty of Amsterdam, which concerned the free movement of persons, asylum, and judicial co-operation over civil matters with cross-

border implications. These policy areas are the basis of the Area of Freedom, Security and Justice within the Union following on the

Tampere European Council meeting. The Regulation forms part of this competence, having been issued under Article 65 of the EC

Treaty (now Article 81 of the Treaty on the Functioning of the European Union). The Regulation was adopted as a response to some

of the problems arising from the free movement policy, where family breakdown and child care orders may unfortunately be

consequences. The key purpose of the Regulation is to provide a secure legal environment for families and for children, against the

backdrop of free movement of persons.

17. It is simply not possible to juxtapose the right of free movement and the Regulation as if they were in some way in conflict. They

are in fact the opposite sides of the same coin. The Regulation arises as a consequence and facilitates the right of free movement of

workers and citizens. It is part of the policy which regulates free movement itself.

18. The Regulation was required as a result of free movement so as to harmonise rules on the jurisdiction, recognition and

enforcement of judgments in matrimonial matters and matters of parental responsibility. The Regulation applies to all Member States of

the European Union, save the exception of Denmark. The Regulation has direct effect and does not require implementing legislation. It

contains standardised rules which are to be applied in a uniform manner by the courts across all EU Member States, including the

courts in this jurisdiction. The approach adopted by the Irish courts in the application of the provisions of the Regulation will not differ

to that approach adopted by the courts in other Member States.

Approach to Article 15 applications

19. The Regulation itself sets out the test to be applied in Article 15 applications. The trial judge assessed the three limbs of that

test, i.e., particular connection, the court best placed and the best interests of the child. The Court was referred to the decision of

the United Kingdom Supreme Court in Re I (A Child) [2009] UKSC 10. At para. 36 of Lady Hale’s judgment, she explains:

“The final requirement in article 12.3 is that the jurisdiction of the English courts should be in the best interests of the

child. Nothing turns, in my view, on the difference between "the best interests of the child" in article 12.3, "the superior

interests of the child" in article 12.1 and "the child's interest" in article 12.4. They must mean the same thing, which is

that it is in the child's interests for the case to be determined in the courts of this country rather than elsewhere. This

question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings

will be in the best interests of the child?" It will not depend upon a profound investigation of the child's situation and

upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.”

(emphasis added)

These observations are as à propos to Article 15 as they are to Article 12 of the Regulation. The paramount issue for consideration in

these applications therefore is the most appropriate forum to determine the best interests of the child.

20. The High Court judge took the view that the Regulation is concerned with the welfare and best interests of children and has to be

interpreted in a purposive manner. He held that the interpretation contended for by the mother, which seeks to exclude public law

cases, would diminish its effectiveness. I am in agreement with the view that the Regulation should be so interpreted. Mostyn J. in

the High Court of England and Wales addresses these points in Re T. (A child: Article 15 of Brussels II Revised) [2013] EWHC 521

(Fam). His comments on this issue arise at paras. 23 and 24 of the judgment and refer specifically to Case 92/12, HSE v S.C. and

A.C..[2012] 2 F.L.R. 1040. There, Mostyn J. addressed first the public law issue, which has already been considered in this judgment:

“23. Finally, I address the question whether Art 15 applies to public law cases. The difficulty is that the wording of Art 15

would suggest that the transfer is made so that the very same parties may litigate as parties the same lis in another EU

jurisdiction. But by its very nature in a public law case the parties will alter if there is such a transfer. However, in Re S

(Care: Jurisdiction) [2008] EWHC 3013 (Fam) [2009] 2 FLR 550 Charles J at para 60 considered that article 15, or

alternatively the inherent jurisdiction, was the appropriate way forward in a jurisdictional issue of forum in care

proceedings. Further, an Article 15 invitation was made where the court had no jurisdiction in Re S-R (Jurisdiction:

Contact) [2008] 2 FLR 1741. Certainly the regulation can apply to institutional care cases: see Health Service Executive v

SC & AC Case C-92/12 PPU at para 60. I am quite sure that article 15 applies to this public law case and nobody has

argued to the contrary.”

The judge summarised matters this way:

“24. Therefore pulling the threads together it seems to me that the applicable principles are as follows:

i) Article 15 applies to public law as well as private law proceedings.

ii) As a precondition the court must be satisfied within the meaning of Article 15(3), that the child has "a particular

connection" with the relevant other member state.

iii) The applicant must satisfy this court that the other court would be better placed to hear the case (or a specific

part thereof). In making this evaluation the applicant must show that the other court is clearly the more appropriate

forum.

iv) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the

more real and substantial connection in terms of convenience, expense and availability of witnesses.

v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer

request and grant a stay unless other more potent factors were to drive the opposite result.

vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the

paramount, consideration.

vii) In making the best interests analysis at (vi) the court will not embark on a profound investigation of the child's

situation and upbringing but will dwell in an attenuated inquiry upon the sort of considerations which come into play

when deciding upon the most appropriate forum.”

21. In my view, this is an admirably clear summation of the tests. It identifies the principles applied by the trial judge here. In my

view, the trial judge was right to adopt this approach.

Particular Connection

22. The question then is as to whether L.W. has a particular connection with another Member State, specifically the United Kingdom,

and more particularly England and Wales.

The learned trial judge correctly pointed out that there were a number of criteria provided for by Article 15(3) for establishing a

particular connection. The Court was urged to interpret Article 15(3) as listing five alternative “gateways” by which a particular

connection of a child to another Member State can be established. Indeed, paragraph 3 of Article 15 enunciates five situations in

which the child “shall” be considered to have a particular connection to a Member State. In contrast to the “court best placed” and

“best interests” tests, which inherently requires a trial judge to take a broad view in the light of all relevant circumstances, the

particular connection test is mechanical in its nature - one simply satisfies the criteria provided for in Article 15(3) or one does not.

The Court is satisfied that such interpretation in relation to the particular connection test is correct, namely, once any of the five

conditions set out in Article 15(3) are established in relation to a particular child, that child has a particular connection with a Member

State. The trial judge pointed out, correctly, that sub paragraphs (c) and (d) were those in issue in the present case. The question

therefore is which court is better placed to address the issues that will arise.

23. An aspect of this case that I would point out is that there may on occasion be an overlap between the “habitual residence” and

“particular connection” tests. One cannot simply ignore here the reason why the mother arrived in Ireland. It was not for a specific

work related reason. She informed hospital staff in Ireland that she had moved her to start a new life with the child she was

expecting. Prior to moving here, she expressed views to the effect that she wished to remove herself from the supervision of the

English social services. If a person removes themselves from a member state to another in order to avoid the effect of the previous

interaction with social services and the court system of that member state, can it truly be said the person has established habitual

residence in the host member state? The answer may depend on circumstances including elapse of time, extent of disclosure and the

awareness of the relevant authorities in the two states. The Court of Justice in Case C-523/07 A [2009] E.C.R. I-102805 held that

the mere presence of a child in a Member State was insufficient to establish habitual residence under Article 8(1) of the Regulation. It

held that over and beyond the physical presence of the child in a Member State there must be factors “which are capable of showing

that the presence is not in any way temporary or intermittent.” Furthermore, the Court held that “[i]n particular, the duration,

regularity, conditions and reasons for stay on the territory of a Member State…must be taken into consideration” when assessing the

habitual residence of the child under the Regulation (emphasis added). This Court cannot ignore the motivation behind the mother’s

decision to move to Ireland. Mere physical presence, perhaps as a result of a desire to avoid the courts of another jurisdiction, will be

insufficient. This factor will surely be important, specifically when a court comes to asses where the child’s best interests lie.

24. Article 15(3)(c) refers to the question of the child’s nationality; Article 15(3)(d) refers to the habitual residence of a holder of

parental responsibility. The trial judge referred first to Article 15(3)(c). The High Court was provided with an affidavit of laws from

Queens Counsel. Issues of foreign law are issues of fact in our courts. L.W.’s mother and father are both British citizens. Counsel’s

opinion was to the effect that L.W. was a British citizen by descent by operation of s. 2(1)(a) of the British Nationality Act 1981.

Citizenship acquisition under this provision is ex-lege, that is to say, it occurs automatically by operation of law, and is not dependent

on the making of any application or other condition. The learned trial judge went on to find that in addition to being a British citizen,

L.W. was also entitled to Irish citizenship by virtue of the Irish Nationality and Citizenship Act 2004, as she was a child born in Ireland

to a mother and father who are British citizens. This was not disputed.

25. There was obviously a factual issue to be determined here. The High Court judge held that an interpretation that Article 15(3)(c)

which only refers to a situation where a child had a single nationality, would be artificial, and would be inconsistent with the reality of

life in the European Union where free movement of persons moving between States is guaranteed; and where children may be born to

mothers who themselves, in many cases, may have more than one nationality. The judge found as a fact that a particular connection

was established by virtue of Article 15(3)(c). The effect of this is that the child, by virtue of her nationality came within the terms of

the Regulation. He also pointed out that an additional factor in the equation was the child’s father’s habitual place of residence was

England and so, there was also a particular connection also established by virtue of Article 15(3)(d). In my view, the learned trial

judge was correct in reaching these conclusions.

26. In so far as it might have been necessary for the learned trial judge to make a determination on L.W.’s place of habitual

residence, he concluded that given the clear views which he had formed in relation to paragraphs (c) and (d), it was unnecessary to

do so. I do not see that there was any error in this conclusion.

Which courts are better placed to hear the case?

27. As the next step, the High Court judge addressed whether the courts of England and Wales were better placed to deal with the

case than the Irish courts. He dealt with the issues of convenience, expense and availability of witnesses under this rubric.

28. First, there was the prior role of the English courts in criminal proceedings. The mother was convicted of child cruelty, wilful

assault, ill treatment and neglect of a child, as well as further convictions for perverting of course of justice and possession of a

firearm in March 2005. Second, there was English child care proceedings brought in 2004 and 2005 which saw the other children of

M.W. taken into care. Evidence before the High Court indicated that the information gained through the proceedings and the ready

access to the various professionals, who had an involvement therein, rendered it manifestly clear that the English courts were better

positioned to deal with the matter. This point was disputed by the mother who pointed out that whatever information was available

from 2004 and 2005 was dated. She contended that, in assessing its significance, this Court should have regard to the fact that the

hearings in question pre-dated a sentence of imprisonment which she had served, and that the counselling she had received while in

prison was beneficial to her.

29. The judge stressed that he was not coming to a concluded view on these issues. He expressed the view that, whether the case

is eventually decided in England and Wales, or in Ireland, M.W. might persuade the court that the risks that were present in the 2004

and 2005 period had abated, so that the mother could safely be permitted to have contact with her daughter. However, relying on

information which he received from D. County Council in the United Kingdom, he referred to the mother’s history so as to indicate that

a very serious issue was raised, which required careful consideration.

30. The judge made the point that, in questions involving contact or access, one of the best indicators as to what may happen in the

future is to be found from what happened in the past. From this, he drew the inference that any court seeking to decide what was in

L.W.’s best interest, and in particular seeking to decide whether the mother could safely have contact with the child or be permitted

to care for her, would necessarily have to delve into M.W.’s history and see what conclusion could be drawn from what emerged. The

judge concluded that the entire background history of the parties, prior to L.W.’s birth took place in England was relevant. He stated,

“It is there that the answer to the question whether Ms. W. can safely care for her daughter is to be found.” In my view, this too

was an entirely legitimate inference based on the evidence.

31. This is not to ignore the fact that since L.W.’s birth in Ireland, M.W. has had contact with her child in that she has been

permitted supervised access or contact, has exercised that right, and conducted herself appropriately. However, some of her

omissions in disclosure in Ireland must give cause for concern. The judge commented that in April 2012, M.W. claimed to a midwife at

a medical centre in Ireland that her child, B, was living with her father. In fact, she was in care in England. She omitted to disclose

the previous involvement of social services with her family. She says that she did not believe her background was relevant and that

“she was also attempting to make a fresh start”. Here again, a court cannot ignore the fact that M.W.’s express object in coming to

Ireland was to remove herself and her child from the reach of English social services.

32. The High Court judge pointed out that there was much in M.W.’s past which may be of concern to those who had the child’s best

interest in mind, even if that concern was capable of being allayed by whatever court deals with the child care issue. He focused on a

number of matters although emphasising that he did so, purely, for the purpose of identifying the scope of material available in

England which might be potentially relevant to future childcare proceedings. He observed that:

“…if an individual has never had any relevant contact with the legal system or with social services, then one court is as

likely to be as well positioned as another to deal with the matter. Conversely, if an individual has an intense engagement

with the legal system and social services of a particular area or State over a prolonged period, there would appear to be

real advantages in having the courts close to that area deal with the matter.”

33. The learned trial judge then went on to enumerate other issues which established the appropriateness of the United Kingdom as

the venue. These included the following:

(a) M.W. had three other children who have been in long term care in Britain. These were A., a girl born in October

1994; J., a boy born in September 1992; and B, a girl, born in April 2002. A and J have now attained their majority

while B remains in care. The mother enjoys a good relationship with J., the boy.

(b) M.W. has been known to L Social Care Services since 1992. In that year, J., then aged six months, sustained a

fractured skull. The injury was investigated but no explanation was provided although 10 days elapsed prior to

seeking medical advice, even though J. had swelling to his head. Initiation of care proceedings was considered at

that stage but these did not proceed.

(c) M.W. reported A. as having had an eating disorder. The social service authorities noted this did not manifest

itself at school, or when she was with other family members. Psychologists concluded that A. was therefore

suffering from anxiety experienced in relation to her mother that prevented her from eating when at home.

(d) There were ongoing periods of interaction with the English social services. There were referrals when A.

displayed bruises caused by her mother. She was being forced to eat off the floor. The child was removed from her

mother’s care. In 2003, B was also removed from her mother’s care due to suffering a burn said to have been

caused by neglect.

(e) The first entry recording M.W.’s interaction with the authorities was on the 15th September, 1990. Then M.W.

was charged with assault occasioning actual bodily harm to a police officer. The final entry, on the 23rd September,

2012, recorded that M.W. presented at the Rotunda Hospital in Dublin. There were over 70 entries in respect of

2003 and approximately a dozen in respect of 2004. The learned trial judge observed that this merely gave an

indication of the extent of the engagement of the authorities, and that, even in isolation, some of the individual

entries made for very disturbing reading.

(f) Childcare proceedings had been initiated in England relating to M.W.’s older children. These came before her

Honour Judge Deely in the County Court who delivered a detailed judgment on the 29th September, 2004, running to

103 paragraphs. This judgment referred to the evidence of experts including medical experts. The same judge

delivered a second judgment on the 12th August, 2005, this time running to over 156 paragraphs or over 40 pages.

On the criminal side, another judge, His Honour Judge Burgess, was involved on the 16th March, 2005. He was

satisfied that the sentence which he had first indicated was not adequate to protect the public, and so proceeded

to provide for what was described as “an extended sentence” with a custodial sentence element of four years and

an extension period of five years.

(g) In the course of English Court proceedings, a consultant psychiatrist and analytical psychotherapist reported

that M.W. was suffering from borderline personality disorder with a history of treated depressive episodes, the most

likely diagnosis of which was identified as “cluster B disorder”. This included borderline anti-social, narcissistic and

histrionic personality disorders, emotional instability, and a tendency to polarise people into being “very good” or

“very bad”. Another consultant forensic psychiatrist had reported that M.W. could be described as having an

“emotionally unstable personality disorder”. He commented that she also showed traits of other personality

disorders. In his view, M.W.’s extremely violent, neglectful, and generally negative behaviour and attitude towards

her children arose from her disordered personality.

(h) The latter consultant forensic psychiatrist expressed the view that it was unlikely that medical treatment would

alleviate or prevent the deterioration of M.W.’s condition. That consultant opined that M.W. would continue to

exhibit “a high risk of further aggressive acts”. He commented on her lack of responsibility, denial, and tendency to

blame others in respect of incidents of violence and aggression. He stated:

“In my view Ms. W.’s children continue to be at serious risk of physical and emotional from her if they were allowed to be

in contact with her at present”.

(i) These views were confirmed by yet a further forensic psychiatrist, again based in the United Kingdom, who

agreed that the mother represented a significant risk and expressed the view that she would continue to pose a risk

to others “unless the presentation described above altered significantly”.

34. Because of the extent of M.W.’s deep engagement with English social and prison services, the judge inferred that there must be a

great number of individuals with potentially relevant evidence about her. As well as the experts who prepared reports, and gave

evidence in the child care and criminal proceedings, there would be child care workers, social workers, local authority personnel,

teachers and probation officers all likely to be in a position to offer relevant evidence. All of these are based in the United Kingdom.

35. The judge pointed out that this was not a case where witnesses might be required to deal with the single incident; or an issue

where a small number of clearly identifiable professional witnesses were required to give evidence. If this were the case, it might well

be realistic to bring such witnesses to Ireland to give evidence or to arrange for taking their evidence by video link. He inferred,

rather, that there was a substantial body of potential witnesses, some as yet unidentified, who might be required to give evidence.

He repeated the truism so often affirmed in family and child care cases that the evidence of some of these, which might not seem

particularly significant now might acquire greater significance depending on the run of the proceedings.

36. To this, this Court can take judicial notice of the fact that video link evidence requires a very high level of prior organisation. In

cases such as this, witnesses must frequently be provided with large bundles of documentation containing social work reports. The

capacity for procedural breakdown is always there, especially if there is to be any unexpected turn in the case.

37. In this context, the judge also drew attention to one other factor: M.W.’s approach to litigation had been unpredictable and

erratic in the past. She was convicted for attempting to pervert the course of justice. She apparently felt intense ill-will towards a

former boyfriend. He had witnessed cruelty to her children and was listed as a witness in the criminal proceedings. M.W. procured a

firearm, shot herself, and then pretended that her former boyfriend had shot her. She stuck to this story, then changed position and

pleaded guilty to possession of the firearm, and attempting to pervert the course of justice. But later, in the child care proceedings,

she again sought to make the case that her boyfriend had shot her and on this occasion embellished the story. As a result, Judge

Deely had to consider forensic evidence relating to line of fire, projectory of bullets and so forth before concluding that M.W. had

indeed shot herself. The judge commented that it seemed possible that issues which had not been thought to be in dispute, might

unexpectedly be contested.

38. In addition to the foregoing, the learned trial judge concluded that it would be likely that experts called would want to update

their reports. As they were based in England, it was more realistic to expect that that updating should take place in England. He

pointed out that the mother now makes the case that she has changed specifically because of her time in prison. Consequently, it

would be necessary to obtain witnesses from the British Prison Service.

39. The judge concluded from the evidence that it was clearly the case that the Courts of England and Wales were better equipped

to undertake that task. I think this was an entirely legitimate inference from that evidence. It is well established that this Court, as

an appellate court, will be slow to interfere with a finding of fact by a trial judge (Hay v. O’Grady [1992] 1 I.R. 210). The finding of

the trial judge as to the court better placed was one of fact, based upon clear evidence and upon inferences from that evidence.

The best interests of the child

40. The judge then turned to the question of whether it was in L.W.’s best interests that the case be dealt with by the English

courts. He adverted to the degree of overlap between this issue and identifying the courts which were best able to deal with the

case. It is right to say that, normally, it would be in the child’s best interests that the court best able to deal with the case should be

the one to do so. Although there may be exceptions to that proposition, they are likely to be rare.

41. The judge posed two alternatives. On one view, placing L.W. with her mother or permitting ongoing access to L.W. by the mother

would be to put the child at grave risk of harm. On the other hand, if the risks that existed in the past had been reduced or eliminated

to a more manageable level, it would be a grave wrong to prevent contact between them. Either way, the decision to be taken,

wherever it is taken, would have enormous consequences. As the judge pointed out, these are not be easy decisions but are

decisions which must be got right. It is obviously in the best interests of L.W. that the decisions be taken by the court best

positioned to do so.

42. Against this the appellant submits:

(a) that it was in L.W.’s best interests that the Irish courts continued to deal with the matter. The evidence does

not point that way;

(b) that Ireland was the only country with which the child has any links and that she has never even visited Britain.

To this one might respond that the child clearly has links with England through her father and half siblings. Her links

with Ireland will be assessed in accordance with her mother;

(c) that her links are with her foster carers and her mother with whom she has bonded during access;

(d) that if she is moved to England in the context of a transfer of jurisdiction, she will be taken from her foster

carers where she has settled well.

(c) and (d) are discussed below.

43. Amongst the other factors which the judge weighed was the fact that M.W. had indicated that her own intention was to remain in

Ireland, and that she was now five months pregnant. It was said that being in Ireland would open up the prospect of L.W. having

contact in the future with her unborn half sibling. This was a factor which might be potentially of benefit for L.W.

44. The judge bore in mind that being in Ireland and in contact with the mother would offer the prospect of contact with J., M.W.’s

son. M.W. is in contact with J. and enjoys a good relationship with him. He is said to be prepared to have contact with his half sister.

Again, this is factor which he weighed in the balance.

45. At present, the child is in foster care. The limited degree of access which takes place is strictly supervised and time limited.

Moreover, the extent of the child’s stay with her present foster carers is, due to its very nature, time-specific. The trial judge pointed

out that it was desirable that the number of placements be kept to a minimum. Child care proceedings should proceed as quickly as

possible. The judge rightly expressed concern that the plenary summons was issued only on the 10th April, 2013, even though the

question of seeking a transfer had been under consideration from an earlier stage. Cases such as these should be initiated and

processed with urgency.

46. But then the judge had to have regard to two other factors. First, M.W., in the past, presented a risk not only to her children but

to their carers. She was prepared to go to considerable lengths to track her children down. If this was to be repeated and became a

factor, then the fact that Britain is a larger country than Ireland might lessen the risk. The judge referred specifically to a passage

from a judgment of Judge Deely where the judge expressed the view that the authorities “should do all in their power to ensure that

the mother is placed in an area far away from any of the children”, and also emphasised to the prime necessity of ensuring full liaison

between the police and all relevant arms of the social services.

47. The High Court judge finally had regard to the question of L.W.’s potential placing for adoption. This would be an available option

in Britain, but in his view, this was not an option at present readily available in Ireland. It is important to point out that what is in

issue here is merely the application to transfer the case. No outcome can or should be predicted if the matter is transferred to the

English courts. On this, he stated:

“Given that one possible view of the facts that may emerge would result in a conclusion that M.W. will never be in a

position to care for her daughter, it seems desirable that the court dealing with the situation should have the widest

possible range of options available to it.”

48. The Court is of course well aware of the natural bond or link which can exist between a mother and her child. Second, Article 42

of the Constitution provides that parents are the natural educators of their children. Against this however, there would appear to be

evidence, which if substantiated in child care proceedings might lead to a conclusion that it would actually be unsafe and dangerous

for the mother to have ongoing custody or, perhaps even, access or contact with her child. Such conduct would surely constitute a

failure of parental duty.

49. These are emotive cases. They are capable of being misunderstood. It is for that reason that it has been necessary to set out, in

more detail than would normally be necessary, the factual basis upon which the learned trial judge proceeded and upon which he

reached his conclusion. The judge indicated that the request should be processed through the channels that exist for judicial

cooperation and indicated that he would propose to seek the assistance of Finlay Geoghegan J., who is the High Court liaison judge

for such purposes. Additionally, he sought an undertaking from the HSE that they would seek to expedite the request, and ensure, for

their part, that the application to the Courts of England and Wales was brought expeditiously.

Conclusions

50. In my view, no error has been demonstrated in the way in which the learned trial judge approached the factual issues, his

inferences therefrom or his application of the law to the evidence. What was is in issue here is not the question of custody or access,

but rather an application which is brought by the HSE that a request be made to the Courts of England and Wales to deal with the

matter. Both the vast preponderance of the evidence and the child’s best interests point this way. In my view, the appeal herein

should be dismissed.