Supreme Court dismisses appeal on jurisdiction, allowing child removal pending English court views on best interests.

THE SUPREME COURT

308/14

O’Donnell J.

McKechnie J.

Laffoy J.

IN THE MATTER OF P A MINOR BORN ON THE 26TH OF JANUARY 2003 AND IN THE MATTEROF THE CHILDCARE ACT 1991 (AS

AMENDED) AND IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2201/2003 OF THE 27th of NOVEMBER 2003

CONCERNING JURISDICTION AND A RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONY AND MATTERS OF

PARENTAL RESPONSIBILTY.

Between/

Child and Family Agency

Applicant/Respondent

and

RD

Respondent/Appellant

Judgment of the Court delivered on the 18th of July, 2014, by O’Donnell J.

1. This matter has come before the Court as an urgent appeal, and in view of the urgency of the situation and the order which the

Court proposes to make it is desirable that a ruling should be delivered immediately.

2. On the 24th of June the High Court (Birmingham J) having made an order under s.45 of the Courts (Supplemental Provisions) Act

1961 prohibiting publication and broadcast of any matter likely to identify the minor child the subject of these proceedings, made two

substantive orders pursuant to Council Regulation 2201/2003 of the 27th of November 2003 and/or the inherent jurisdiction of the

Court. First, a declaration was made under Article 17 of the Regulation that the Courts of Ireland did not have jurisdiction under the

Regulation in respect of matters concerning the parental responsibility of P the minor the subject matter of these proceedings and

who is the son of the respondent/appellant, RD. That order was made on the grounds that the Courts of England and Wales were first

seized of the issue of the care and custody of the child under Council Regulation 2201/2003 (“the Regulation”).

3. The second order made was an order pursuant to Article 20 of the Regulation, and was accordingly provisional and protective relief

in the aid of the proceedings in the Courts of England and Wales. The order made was that the plaintiff/respondent to the appeal,

that is the Child and Family Agency, should be permitted to remove the minor child from his current placement in this jurisdiction

where he is in care (pursuant to orders made in the District Court) and place him in the care of Birmingham City Council. The High

Court however also made ancillary orders staying that order pending an urgent appeal and also to permit the child to finish his school

year. The Court also made orders permitting the Child and Family Agency to take all necessary steps for the purpose of implementing

the transfer to Ireland and England, permitting it to liaise with the central authority for England and Wales with regard to the

circumstances of the minor, and lifting the in camera rule for the purpose of permitting that agency to convey any necessary

information and reports relevant to the proceedings in Ireland in respect of the minor to Birmingham City Council and/or the central

authority for England and Wales and/or the Courts of England and Wales for the purposes of sharing information relating to the said

minor.

4. Some of the foregoing orders are unusual in a case of this nature, and reflect certain features of this case, which can also be

detected in the High Court judgment. At paragraph 11 Birmingham J expressed his anxiety that everything should be done so that the

English Courts were made aware of the responsible manner in which Ms D had engaged in a very effective way with the Irish childcare

authorities and the fact that the child, who was clearly of an age to express opinions on these matters, had clear and determined

views that where he wants to be is with his mother.

5. The facts of this case, insofar as they concern the Irish Courts, are set out in the judgment of Mr Justice Birmingham and need

only be briefly recounted here. It appears that there was considerable concern on the part of Birmingham’s City Council’s social

services as to the circumstances of the child in this case, and there was very full engagement with the appellant, and indeed her

partner David S (otherwise David L, otherwise David LF). There seems little doubt that the concern of social services was largely as a

result of the behaviour of David S/L/LF, his background, and incidents of domestic violence perpetrated on the appellant. As is

recounted in the High Court judgment there is no doubt that at the turn of the year an application for a care order in respect of P

was at a very advanced stage. While there is some dispute as to the precise sequence of events, the High Court judge found that

there was no doubt but that the care proceedings were imminent and that fact to a significant extent precipitated the move to

Ireland.

6. According to Ms D, she and her son arrived in Ireland on the 19th of January 2014. She has produced copies of travel tickets for

that day. On the 12th of February 2014 care proceedings were instituted in Birmingham and on the 19th of February 2014 District

Judge Hickman sitting at the Birmingham County Court placed the child in the care of Birmingham City Council. This order was made ex

parte. On the 3rd of April 2014 the High Court of England and Wales (Keehan J) made an order declaring that the minor child was

habitually resident and continued to be resident in England, that he was removed from the jurisdiction without the consent of

Birmingham City Council, and that as a consequence he was unlawfully removed and is wrongfully retained in Ireland. The court

therefore ordered that the child should be returned to the care of Birmingham City Council forthwith by no later than the 10th of April

2014 and that the applicant local authority should seek a further hearing of the matter on successful enforcement of the order. The

order went on to provide that the court was respectfully requesting that the judicial authorities, the HSE (the predecessor to the

applicant herein) and the police in Ireland provide all necessary help and assistance to secure the return of the child to the

jurisdiction of England and Wales. That order was again, and necessarily, made, ex parte and on the information then available to the

English High Court. It is pursuant to that order and its request for assistance that this application is made.

7. On the 16th of April 2014, P was located by the gardaí at a bed and breakfast in Gardiner Street in Dublin with his mother RD and,

significantly, his father David S/L/LF. As recounted in the High Court proceedings they were in a bad way and their circumstances

were difficult. They had slept in an internet café the previous evening. At that time David S/L/LF was with the appellant and P and

they were treated as a family. David S/L/LF was named as a respondent in the proceedings, and there seems little doubt that he was

involved in the initial defence of the application brought by the Child and Family Agency in this case. Three affidavits were sworn by

Ms D, the general thrust of which was to deny that there was any ground for concern as to the health and welfare of P and to deny

any wrongful removal and to assert that habitual residence had been established in Ireland. Ms D was represented by senior and junior

counsel in the High Court, and the application was fully contested. Of particular note for present purposes is the fact that among the

matters debated were allegations made that Ms D had been assaulted by David S/L/LF and that this behaviour, the likelihood of it

being repeated and indeed Ms D’s failure to cooperate in a criminal prosecution, were matters which had given rise to the concerns of

Birmingham City Council as to the care and welfare of P.

8. In the High Court, Ms D’s position was a complete denial of these allegations. In particular in an affidavit sworn on the 15th of May

2014 at paragraphs 16 and 17 she said the following:

“I say that I was never assaulted by P’s father. [David S/L/LF] I say that the averment by the applicant is disingenuous and

misleading in this regard. Is say that I presented at hospital at only one occasion with a wrist that had a fracture due to an accident

and not due to any assault perpetrated on me by P’s father. … I say it was only P and your deponent who resided for a period of

years to in or around the year when P’s father was released from prison. I further say that P’s father was never violent to your

deponent nor has he ever been violent to P.”

9. This was the state of the evidence upon which the High Court made the orders it did. It should be said however that at that stage

it was also apparent that P had done very well in his placement in Ireland.

10. This appeal has been brought by Ms D who now represents herself. The position since the High Court has changed significantly.

First, Ms D submitted a letter to this Court. In this letter she now makes a case entirely contrary to that advanced before the High

Court. It provided as follows:

“I would like to put forward the purpose of this letter. I am appealing in order that my son should return to England and be under the

care of Birmingham City Council. My case is between Child and Family Agency plaintiff and R D defendant. The court date is for the

17th of July 2014. I came over to Ireland to escape problems in England. I was a victim of domestic abuse in England and because of

this the social services were involved. The father of my child committed the domestic violence. The father is still living in England and

my son is at risk if he returns. The father tried to kidnap my son here in Ireland when my son was taken into care. I came to Ireland

on my own and the father followed me a few days later on the ferry. I have full rights of travel to Ireland when I left England. I was

not aware of the orders being made against me and did not receive a court summons. I was in Ireland when the court orders were

made in England. I don’t understand why a care order can be made against me when I was not aware of it and I was living in Ireland.

I left England to get away from my problems and so that my son could be safe. My son doesn’t want to go back to England. I am very

worried about his safety. Judge Birmingham in the High Court said that my son is doing well in school here and that he should be

returned to me. However because my son’s habitual residence is in England he said that my son had to return. My affidavit was not

submitted and I didn’t get to testify so Judge Birmingham was not made fully aware of the dangers my son would face if he returned

to Birmingham. Also it would be very difficult for me to have good relations with the social services because of the personality of the

father. The father is a very difficult person and has no regard for the law. I don’t drink or smoke or take drugs. I am clean living. I

have attended every access visit and I have never been late. I have always been respectful and courteous. I have never committed

a crime and I want to work and look after my son and make sure he is doing well at school. If my son stays in care he will be under

enormous stress. All of this is at risk if my son returns to Birmingham.”

While this letter raises obvious issues of the credibility of any account proffered by Ms D in the light of the affidavit referred to above,

the approach now taken also raises the possibility that she wishes to establish a life for herself and her son which would exclude the

source of much of the concerns in relation her son’s welfare.

11. On the opening of this appeal, counsel for the Child and Family Agency brought to our attention a number of matters. First, it is

common case that the minor child has expressed his view to the High Court as to his desire to stay in Ireland, to have this matter

determined and to remain with his mother. Second, it is accepted that he is doing well in care here. Third, and most importantly,

counsel provided to the court an email received yesterday from the solicitor from Birmingham City Council. Since this is an important

letter and represents an expression of views by the moving party which sought the care orders in the English courts, in consequence

of which the application has been made in this court, it is desirable to set that out in full (with appropriate redaction):

“Dear Sirs,

Many thanks for your email communications and apologies for the delay in responding to you. I have had lengthy discussions with my

client department regarding the way forward in light of the hearing tomorrow and the mother’s application to appeal the order

previous made by the court for the court of P to the UK.

I can confirm that the social worker and team manager have been informed that the mother Ms D has expressed a clear wish to

remain in Ireland and she wants P to also remain in Ireland. The social worker confirms that the mother’s rationale for remaining in

Ireland is that she now recognises and accepts that Mr F, P’s father is the perpetrator of domestic violence against her and that both

she and P are at risk from him. She maintains that she wishes to separate from him and the best way that she can maintain her

separation from him without putting herself and P at further risk is by remaining in Ireland.

This local authority acknowledges that the parents appear to have separated and appear to have had no contact at all since the

19th of April 2014. This period of separation is quite significant for this couple who have a history of separating and rekindling their

relationship after very brief periods of separation. Birmingham City Council does not wish to set Ms D up to fail by insisting upon her

and P’s return to the UK but on the other hand the local authority cannot be confident at this stage, without a full assessment being

completed that Ms D can meet P’s needs and protect him from any risk of harm. In addition to the domestic violence issues there

were also grave concerns regarding the neglect of P’s educational development and the fact that he had received no educational

input for over one year prior to his arrival in Ireland.

The local authority would require an assessment to be completed of Ms D and her ability to parent P prior to any proposed return of

him to his mother. This assessment however could be conducted whilst Ms D and P remained in Ireland and could be completed by

social workers in Ireland or alternatively an independent assessor could be commissioned by Birmingham local authority.

We therefore await the decision of the court as to whether or not it is appropriate in all the circumstances for P to return to the UK

and providing a child can remain safeguarded pending assessments this local authority would not actively oppose the suggestion that

P and Ms D remain in Ireland. Whilst the Birmingham authority is willing to consider P and Ms D remaining in Ireland this is not in any

way to attempt to abstain from or transfer responsibility to the Irish authorities.

The interim care order continues in this case to date and P remains subject to an interim care order in favour of Birmingham City

Council.

Consideration will of course need to be given to a child being placed outside the jurisdiction while subject to an interim care order and

the necessary court authority provided.

I await your thoughts and comments.

Senior Solicitor

Birmingham City Council.”

12. This email seems to indicate the willingness on the part of the local authority which is the original moving party, and still is the

moving party in the English proceedings, to consider the possibility that P and Ms D would remain in Ireland. This court sought to

explore the full implications of this further, but perhaps because of the urgency of the matter, and the difficulty of communication, it

is fair to say that little progress was made and indeed counsel ultimately submitted that the appeal should simply be dismissed and

the order of return enforced and matters resolved in England by the English courts. In her submissions Ms D said that she was not in

essence contesting her son’s habitual residence in England for the purposes of the Regulation but she did contend that it was not

necessary for her son to return to England. She emphasised that the Regulation was based on an approach as to the best interest of

the child and she argued that those interests did not require that her child be returned to care in the United Kingdom. The account

she now gave the Court was to suggest that she was frightened of David S/L/LF and that that indeed was one reason why she did

not wish to see her child returned to England. It is fair to say that the Irish social work team are cautious about the extent to which

Ms D has severed all connection and contact with David S/L/LF.

13. Although there is reference in the papers to wrongful removal, this application is not made pursuant to Article 15 of the Regulation

which deals with child abduction. There is no doubt however that the circumstances of removal recounted in the High Court judgment

are relevant to the question of habitual residence. In this case the Court is quite satisfied that the finding of the judge in this regard

cannot be disturbed and was correct. Indeed Ms D does not seriously now contest the fact that this Court should approach this

matter on the basis that P is habitually resident in England and Wales so that those courts had jurisdiction. In those circumstances it

is this Court’s obligation to recognise that the English courts were first seized with this matter and to decline any jurisdiction as to

subject matter relating to the care and welfare of the child. The jurisdiction which the court then has is pursuant to Article 20 which

is a jurisdiction to make orders which are provisional and protective relief in aid of the court of the Member State which had

jurisdiction as to the substance of the matter.

14. In the first place this Court will dismiss the appeal against the declaration made by the High Court judge under Article 17 and

confirms that it will accordingly proceed on the basis that the courts of England and Wales have jurisdiction as to the substance of

the matter. This is an important step since it carries with it the consequence that the primary issues of fact must be resolved in

those courts as must the decision as to care and custody.

15. The fundamental issue for this Court as for the High Court, was whether it was appropriate to make an order under Article 20

directing the return of the child in question. In most cases, this will follow from a finding that the courts of another Member State

have jurisdiction on the grounds of habitual residence. However such order is not required by the Regulation. Instead the Regulation

permits the court of another Member State to exercise its jurisdiction to grant provisional and protective measures in aid of foreign

proceedings. It remains an issue in each case as to whether it is appropriate to do so. As already observed, in many cases this will

not pose any difficulty.

16. In this case however, these Courts are asked to make an order for the return of the minor child on the basis that such an order

was made in the United Kingdom on the 3rd of April 2014. However, that order was made ex parte, and upon limited information. The

situation has changed significantly most notably because of the possibility that the appellant has severed her relationship with David

S/L/LF, and most importantly, the views expressed on behalf of Birmingham City Council in the email of 6th July. This raises a

possibility that the English Court might consider that it is not now necessary or appropriate that P should return to the United

Kingdom. Whether the care of P and his best interests mean that he should be returned to care the United Kingdom in either the short

or longer term, is a matter within the jurisdiction of the courts of England and Wales. The declaration made pursuant to Article 17 by

the High Court, is, as a result of this Court’s dismissal of the appeal in that regard, now final. However no determination on the

question of the future care of P has been made on the information which is now available and which may require to be considered

tested and perhaps supplemented. In the exercise of this Court’s discretion it is important to know whether Birmingham City Council in

the first place, and ultimately the courts of England and Wales, consider that it is now necessary that the child be returned to

England and Wales pending any order made by those courts as to the welfare of the child. Accordingly, this Court proposes to adjourn

its decision in respect of the appeal against the order returning P to England and Wales pursuant to Article 20 of the Regulation for a

period of one week from today with a view to permitting the Birmingham City Council (and the Child and Family Agency if thought

appropriate) to bring applications before the English High Court with a view to obtaining its views on question of whether it requires

that P be returned to England immediately for the purposes of any decision on his care and welfare. Once this matter has been

addressed the Court will make its decision on the Article 20 application, and should make it clear, that should the English court

determine that it is appropriate that the child be returned then this Court would be disposed to make such an order.

17. The Court has also emphasised to Ms D the importance of attending before the English court, obtaining legal representation there

(and indeed here) and being frank and cooperative with the courts and the authorities in both jurisdictions.

18. Accordingly the order of the Court on this appeal will be to dismiss the appeal against the declaration made by the High Court

pursuant to Article 17 and to adjourn for one week the appeal against the order made pursuant to Article 20 of the Regulation. The

Court will also make the same orders made in the High Court, prohibiting the publication of any details likely to identify the minor child,

lifting the in camera rule to permit the CFA to liaise with the Central Authority for England and Wales regarding the circumstances of

the minor and to convey any necessary information or reports to respect of the minor to the central authority in England and Wales

and/or to Birmingham City Council and the courts of England and Wales.