Court grants care order for child habitually resident in Ireland, rejecting jurisdictional arguments based on country of origin. Child 1 lost habitual residence to Ireland.

[2016] IEDC 13

AN CHUIRT DUICHE THE DISTRICT COURT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

-AND-

J&P

RESPONDENTS

In the matter of Child 1

INTRODUCTION

1. The Child and Family Agency (CFA) brought proceedings for an Emergency Care Order before the District Court in respect of Child

1. The grounds relied on by An Garda Síochána when invoking their powers under section 12 of the Child Care Act, 1991 were that

they had been contacted by Interpol who apprehended that Child 1, a minor, was in the physical custody, care and control of a much

older gentleman. They were informed that Child 1’s parents had given authorisation for their daughter to travel to Ireland as a tourist

with this gentleman for a period of a year. The parents also authorised him to represent Child 1 before the authorities. This

authorisation was executed before a notary in accordance with the law of Child 1’s country of origin.

2. The parents’ position was to permit this gentleman to take Child 1 out of her country of origin to act as a babysitter for an aunt

with a larger family living in Ireland. When the parents could not contact their daughter they made a formal complaint to their national

police as they were apprehensive that Child 1 might try to marry this gentleman and they were concerned that Child 1 was at risk of

violence and being forced to take drugs.

3. Pursuant to Interpol communications, An Garda Síochána was requested to locate the couple. They carried out this task and Garda

B gave evidence during an earlier hearing of this case that when he interviewed the gentleman, the gentleman stated that his

relationship with Child 1 was consensual and planned by arrangement with Child 1 and with her parents. It was his position that the

parents now objected to the arrangement because money was longer being sent to them by him. He also alleged that if Child 1 was

returned to her parents that they would make another arrangement with another man for money as this is what happened with Child

1’s older sister who had four relationships under such arrangements.

4. The CFA Social Worker, Mr. D, met with Child 1 and with the benefit of an interpreter ascertained that she corroborated the

account of the gentleman. She did not wish to return to her country of origin or to the care of her parents as she apprehended that

they would plan another marriage for her, without her consent.

5. An Garda Síochána commenced an investigation into child trafficking.

PROTECTIVE STEPS TAKEN UNDER ARTICLE 20

6. The Court previously granted an Emergency Care Order under section 13 (1) of the Child Care Act, 1991 and an Interim Care Order

under section 17 (1) of the Act. The Court outlined the necessity for an Article 17 examination of jurisdiction in accordance with

Council Regulation 2201/2003 proceeding under Article 20 to ensure protective measures were taken pending such jurisdictional

examination. The Interim Care Order was extended from time to time pending a fact finding hearing on the circumstances of Child 1

presence in Ireland so that the Court could determine its jurisdiction under Articles 3 and 17.

7. The parents were represented in the Irish proceedings by a solicitor and counsel and their evidence was taken via television link

from their local jurisdictional Court. Child 1 was made a party to the proceedings and was represented in the proceedings by her

solicitor. The Agency was represented in the proceedings by a solicitor.

HABITUAL RESIDENCE

8. Article 8.1 provides that 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 the time the Court is seised. Article 9 provides that where a child moves lawfully from

one Member State to another and acquires a new habitual residence there, the Courts of the Member State of the child's former

habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the

purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access

rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's

former habitual residence.

9. Case C-532/07 highlighted that Recital 12 in the preamble to Regulation 2201/2003 provides that:

“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.”

This case highlighted that:

“the concept of ‘habitual residence’ under Article 8(1) must be interpreted as meaning that it corresponds to the place

which reflects some degree of integration by the child in the social and family environment. To that end, in particular the

duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that

State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and

social relationships of the child in that State must be taken into consideration when determining the habitual residence of

a child. It is for the National Court to establish the habitual residence of the child, taking into account all the

circumstances specific in each individual case.”

Furthermore, this case highlights that the ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, must be

established on the basis of all the circumstances specific to each individual case. This is accordingly a question of fact to be

determined by this Court as there is nothing to prevent a change of habitual residence by Child 1.

10. This position was reinforced in the case of Mercredi v Chaffe (C 497/10 PPU) which highlighted the interplay between Articles 8

and 10 of the Regulation. It also outlined how to properly interpret the concept of ‘habitual residence’ for the purposes of those

Articles and the Regulation so as to determine which court has jurisdiction to make relevant orders in matters relating to rights of

custody.

11. This case highlighted that the test for habitual residence was “the place which reflects some degree of integration by the child in

a social and family environment”. Habitual residence must be assessed with this in mind and it will be highly unusual for a child not to

acquire habitual residence in the country to which she travels lawfully to live with a parent, however the requirement for integration

permits some flexibility.

12. This case involved an infant who was lawfully removed by her mother to a Member State other than that of her habitual residence

who was there for only a few days when the Court in the State of departure was seised. The facts in this case are quite different.

But the Mercredi v Chaffe case outlined the factors to be considered by a National Court in making a determination of habitual

residence, which included:

i. The conditions and reasons for the child’s stay on the territory of a Member State;

ii. The child’s nationality and whether presence in a Member State is in any way temporary or intermittent;

iii. The intention of the person (with parental responsibility) to settle permanently with the child in another Member State,

manifested by certain tangible steps such as the purchase or rental of accommodation in the host Member State;

iv. While the case is authority for the proposition that there is no minimum duration to establish ordinary residence- the

duration of time spent in the new country can be an indicator and an assessment must be carried out in the light of all

the circumstances of fact specific to the individual case.

13. Two issues arise; firstly, whether the Notarised Declaration comes within Article 1 and Article 2 and secondly which court was

first seised within the meaning of the Regulation?

14. The concept of ‘habitual residence’, for the purposes of Articles 8 and 10 of the Regulation, must be interpreted as meaning that

Child 1’s residence should correspond to the place which reflects some degree of integration by her in a social and family environment.

If that is this jurisdiction then it is for an Irish Court to establish the habitual residence of Child 1, taking account all of the

circumstances of fact specific in the particular case.

15. If the application of the above mentioned tests lead to the conclusion that the child’s habitual residence cannot be established

then jurisdiction must be determined on the basis of the criterion of Child 1’s presence, under Article 13 of the Regulation.

16. Article 55 of the Regulation provides for the role of the Central Authority, upon request from a Central Authority of another

Member State or from a holder of parental responsibility, to ensure cooperation on specific cases to achieve the purposes of the

Regulation is to collect and exchange information on the situation of the child; on any procedures under way; or on decisions taken

concerning the child. That co-operation has been evident to some extent in this case although it has taken some considerable time

and copies of the proceedings or Court Orders have not been produced to the Court by the legal team for the parents although some

additional correspondence from the Directorate for International Law and Judicial Cooperation was produced to the Court today and

admitted into evidence by consent of all the parties.

17. The decision of A (Children) (AP) [2013] UKSC 60 is authority for the proposition that a child’s habitual residence is not

automatically that of his or her parents. The test for determining whether a child is habitually resident in a given place is whether

there is some degree of integration by the said child in a social and family environment in the given jurisdiction which in essence is a

purely factual question.

Notarised Declaration

18. Child 1’s parents executed a Notarised Declaration by which they authorised the gentleman to take their daughter from her

country or origin to Ireland on a tourist visa for a period of a year and further authorised him to represent Child 1 to the authorities.

19. Article 46 of the Regulation provides for the recognition of documents which have been formally drawn up or registered as

authentic instruments enforceable in one Member State being recognised and declared enforceable under the same conditions as

judgments. It is common case that the Notarised Declaration was validly executed. However, Child 1’s parents now indicated that

they entered into this agreement mistakenly and commenced a complaint process on two occasions in their local jurisdiction to have it

revoked. Child 1’s parents indicated that they lodged a complaint with the national Police on two occasions and copies of these

complaints were produced to the Court. Child 1’s parents wrote directly to their local jurisdictional Court also., However, the legal

representative for Child 1 objected to this correspondence being received as evidence by the Court at the application to extend the

Interim Care Order in the absence of the parents sworn testimony.

20. The Court requested that an Affidavit be filed by the parents setting out the facts as they saw them. The Court also requested

that arrangements be put in place in order to hear their oral evidence of Child 1’s parents by video conference from Child 1’s country

of origin. Ultimately, this occurred some six months later as the parents found it difficult to make arrangements to travel to an

appropriate Court. Their oral evidence was that they commenced legal proceedings to annul the Notarised Declaration signed by them.

However, as there was no appearance by the gentleman, their proceedings did not result in a court determination. Copies of the court

applications were not produced to the District Court. The oral evidence of the parents supported the statements made to their

national Police. They adamantly denied that they made arrangements with the gentleman to facilitate him leaving the jurisdiction with

their daughter to cohabit as a couple, as well as to work as a babysitter, as claimed by both the gentleman and Child 1.

21. The Social Assessment provided to the Court by the country of origin, outlined the family’s modest circumstances.

FINDINGS

22. The circumstances surrounding the execution of the Notarised Declaration are in dispute. In the absence of the parent’s

jurisdictional Court Order nullifying the validity of the Notarised Declaration by reason of fraud, this Notarised Declaration must be

taken at face value by this Court in that it was executed validly and was for a period of a year, with a return from Ireland to the Child

1’s country of origin at the expiration of period set out in the Declaration. It is not clear whether it is a document purporting to deal

with Guardianship, curatorship or a similar institution and there is no Affidavit of Laws outlining its status.

23. Child 1 is a National of another EU state, as are her parent’s. Her parent’s say that she was to stay in Ireland only for one year to

care for the children of her aunt who lives in Ireland. It is their position that the gentleman was to bring her to Ireland for this

purpose only. Until the hearing of this case, their position was that they want their daughter to return to her country of origin. At the

conclusion of their testimony they became overwhelmed during the Court process and indicated that she could stay in Ireland as they

had other children, however this was in heightened circumstances.

24. The evidence of Child 1 is that she met the gentleman on social media and at all times it was clear to both her and her parent’s

that she and the gentleman would enter into a consensual relationship. Her parents were to gain a financial benefit from this

arrangement and money passed in this regard. She was well cared for and properly treated by the gentleman and she had the benefit

of language classes. She had intended to work as a babysitter in Ireland also, but since coming into the care of the CFA she has had

the benefit of further education and she now wishes to finish secondary education. She has fully integrated into Irish Society and

now speaks English fluently as is evidenced from both her direct testimony and on cross examination. Her sworn evidence is that she

fears that she will be obliged to marry so that her parents can derive a benefit from her husband or the father of any child she has in

the same way as her sister. She fears that she will be obliged to marry another man if she is returned to her country of origin.

25. The evidence of the previous and current Social Worker is that Child 1 is an assertive and articulate mature young woman on the

cusp of eighteen years. Her evidence is that she came to Ireland to live with the gentleman in a cohabitation endorsed by her

parents. It was her intention to marry him when she was eighteen years and her state of mind when coming to Ireland was that it

was her intention to remain in Ireland. She has resided in a Residential Unit since being received into the care of the CFA.

26. Child 1 came to Ireland lawfully when she was a mid- adolescent and within a period of weeks, prior to Child 1’s lawful entry to

this jurisdiction her parents sought to impugn the lawfulness of the Notarised Declaration. They are of modest means living in

straightened circumstances in a rural part of their jurisdiction, but they received assistance from the Central Authorities and were

provided with Legal Aid to contest these proceedings..

DECISION

27. This is not a child abduction case, which would in any event be determined in the High Court if the Hague Child Abduction

Convention applied, which in this case it would seem that it does not, and that Convention does not extend to children over 16 years.

Council Regulation 2201/2003 does not set an age limit and it falls to this Court to determine the habitual residence of Child 1 before

embarking on hearing a Care Order application by the CFA under section 18 of the Child Care Act, 1991. The nub of this case,

therefore, is whether the habitual residence of Child 1 shifted between the date of Notarised Agreement and the date of the

Application in the other EU jurisdiction adduced before the Court today pursuant to Article 55.

28. Child 1 is a National of another EU member state, who lawfully came to Ireland with a non parent by virtue of a Notarised

Declaration, made in Child 1’s country of origin, which was used to ensure her lawful entry to this jurisdiction. The gentleman, named

in this Notarised Declaration, was authorised to represent the interests of Child 1 in this jurisdiction.

29. It is argued by counsel for the parents that Child 1 was wrongfully retained in Ireland against the will of her parents and,

therefore, her habitual residence is her country of origin and not Ireland. Consequently, this Court does not have jurisdiction to

determine the Care Order proceedings and it falls to the Court of the other Member State to determine Child 1’s habitual residence.

30. I have considered all the circumstances of this case including the circumstances in which Child 1 arrived in Ireland. It is not

necessary for this Court to resolve the conflict of evidence between Child 1 and her parents as to the circumstances of the

arrangements with the gentleman. An Garda Síochána has not yet finalised its investigation into alleged trafficking.

31. This is a very unusual situation in that Child 1 was mid- adolescent when leaving her country of origin and is now almost eighteen

years old, but was seventeen years old at the date of the commencement of these care proceedings.

32. I am satisfied on the evidence of Child 1 and the Social Worker(s) that Child 1’s intention and state of mind when she left her

country of origin for Ireland was that she intended to reside with the gentleman in an intimate and committed relationship of her

choosing and that they would live in Ireland. She had the opportunity of returning to her country of origin when her sister came to

Ireland before the commencement of the care proceedings. She declined to return to her country of origin at that time. Child 1 is a

mature minor who was capable of and did express her own views to the possibility of returning to her country of origin at that time

and subsequently and has been consistent in this context. Accordingly, I am satisfied that this case meets ‘unusualness’ threshold

outlined in the A (Children) (AP) [2013] UKSC 60, and the quality of ‘stability’ test outlined in AR v RN (Habitual Residence) [2015]

UKSC 35, [2015] 2 FLR 503. This is a case where the “see-saw analogy” set out in Re B (A child) [2016] UKSC 4 arises and so I am

satisfied that Child 1 lost her habitual residence as she put down the first roots in Ireland, prior to the commencement of these

proceedings, and established the requisite degree of integration in the environment of the new state, namely Ireland within weeks of

her arrival in Ireland. By her own evidence Child 1 was very involved in the pre-planning leading to her moving from her country of

origin to Ireland. I have already acknowledged that the scope of the permission or Notarised Declaration was strictly time-limited in

assessing Child 1’s habitual residence. The Regulation and case law note that the focus must be on the situation of the child, the

purpose and intention of the parents or consent of the parents is, but one of the relevant factors which the Court must take into

account in a non exhaustive list of factors to be considered as relevant factors when determining the habitual residence of Child 1.

Child 1 has been joined as a party to the proceedings and has given evidence and I am satisfied on the evidence that she is

sufficiently mature to form the intention to change her habitual residence and that she did so within a number of weeks of leaving her

country of origin.

33. I have carefully considered the legal submissions from counsel and the solicitor for the parents and Child 1 solicitor for Child 1 and

solicitor for the Child and Family Agency.

34. I am satisfied on the evidence adduced in these proceedings that Child 1 became habitually resident in Ireland within some weeks

of leaving her country of origin and so I find the conditions for the exercise of this Court’s jurisdiction to make a Care Order under

section 18 of the Child Care Act 1991 are met. At the date when the parents jurisdictional Court proceedings were commenced

(according to the document filed today by her solicitor and counsel which indicate that the parents jurisdictional proceedings were

“opened ” in advance of the care proceedings). At that time, Child 1 was a habitually resident in Ireland rather than in her country of

origin and having regard to recital 12 and Article 8(1) of the Regulation I find that Child 1 was not habitually resident in her country of

origin in spring 2015, but a habitual resident in Ireland.

35. I am also satisfied on the basis of the evidence adduced that it is appropriate and proportionate to make a Care Order and I

receive the Draft After Care Plan provided by the Agency to the Court and note that the finalised Care Plan will be filed in Court.

36. This hearing was in camera. The identity of the parties and the time line has been removed to protect the identity of the parties

to these proceedings.

37. In terms of reporting this case nothing is to be reported or broadcast, including any return dates for the case, which would lead

members of the public to identify the child or any of the parties involved in the Child Care proceedings as stipulated by the Courts and

Civil Law (Miscellaneous Provisions) Act 2013.

Judge Rosemary Horgan