District Court dismisses jurisdiction claim as child's habitual residence in Ireland is not established due to lack of stability and integration.

[2017] IEDC 10

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

G

-AND -

OTHERS

RESPONDENTS

C, GUARDIAN AD LITEM TO F

(Number 1)

In the matter of child F

[Note: This version of the original decision delivered is prepared for the purpose of publication. Any changes from to the original are

intended only to be as to form and not as to substance, and are for the purpose of reducing the possibility of identification of the

child.]

1. Article 8 of Council Regulation (EC) no 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement

of judgments in matrimonial matters and the matters of parental responsibility, (The Regulation) provides as follows:-

General jurisdiction

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.

2. Article 16 of The Regulation provides as follows:-

Seising of a Court

1. A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court,

provided that the applicant has not subsequently failed to take the steps he was required to take to have service

effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the

authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was

required to take to have the document lodged with the court.

3. It is necessary to determine the date on which the court was seised of proceedings, as general jurisdiction under Article 8 of The

Regulation refers to habitual residence of a child at the time the court is seised.

4. The subject matter of the within proceedings is F. F was born in July 2015 in Ireland. For the purposes of establishing jurisdiction,

F’s habitual residence (if any) must be determined.

5. F's mother is G. She is a citizen of a member state of the EU (hereinafter The Member State), other than Ireland.

6. Two putative fathers of F have been named, D and B. G is not married to either D or B. G maintains that D is father. DNA testing

has indicated that B is father. The DNA test result has not been formally proved and remains in dispute by G. D has been served with

proceedings but has not participated in such proceedings. The Child and Family Agency were unaware of B until August 2016, and B

was not served with what will hereafter be described as the 2015 proceedings.

7. B has been notified of what will hereafter be described as the 2016 proceedings under the Child Care Act 1991 (The 1991 Act), and

also of enquiries being carried out by the court pursuant to The Regulation. He has indicated by email to the solicitors acting on

behalf of the Child and Family Agency, and in conversation with the guardian ad litem, that he has instructed solicitors in Ireland. I am

satisfied that he has been aware of the Child and Family Agency's interest in this matter since at least August 2016. To date, neither

he nor any lawyer on his behalf has appeared in court or filed any application, even though on the court's direction he was specifically

informed that the court would complete hearing The Regulation 2201/2003 matter on 14 February 2017.

8. As far as is known to the court, both D and B reside in The Member State. As far as is known to the court, neither D nor B have

had any contact with F.

Proceedings to date

9. Within hours of F’s birth on 11 July 2015, the Gardaí exercised their power under s. 12(1) of The 1991 Act, and delivered F into the

custody of the Child and Family Agency pursuant to s.12(3) of The 1991 Act.

10. On 13 July 2015, the Child and Family Agency issued a notice of application for an emergency care order pursuant to s. 12(4) and

13 of The 1991 Act. G was named as the sole respondent, and the subject child (F) was referred to as "baby G". The notice was for

hearing of the application at 2 p.m. on 13 July 2015. It appears that the notice was lodged with the court on 13 July 2015. The court

was seised of these proceedings on 13 July 2015.

11. The application for an emergency care order proceeded to hearing. An emergency care order was not made, in circumstances

where F was received into the care of the Child and Family Agency under s. 4 of The 1991 Act i.e. into what is known as "voluntary

care". The relevant parts of s. 4 of the Child Care Act 1991 provides as follows:-

4.—(1) Where it appears to the Child and Family Agency that a child requires care or protection that he is unlikely to

receive unless he is taken into its care, it shall be the duty of the Agency to take him into its care under this section.

(2) Without prejudice to the provisions of Parts III, IV and VI, nothing in this section shall authorise the Child and Family

Agency to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco

parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him.

(3) Where the Child and Family Agency has taken a child into its care under this section, it shall be the duty of the

Agency—

(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the

Agency to require it and while he remains a child, and

(b) to have regard to the wishes of a parent having custody of him or of any person acting in loco parentis in the

provision of such care.

12. On 15 July 2015, the Child and Family Agency issued notice of an application for an interim care order pursuant to s. 17(1) of The

1991 Act in respect of F, and also notice of application for a care order pursuant to s. 18(1) of The 1991 Act in respect of F,

returnable five further days later, on 20 July 2015. G and D were named as respondents. It appears that those notices were lodged

with the court on a date between the 15th and 20th July 2015. The court was seised of these proceedings on a date between the

15th July 2015 and 20th July 2015 and it is immaterial as to which of those dates it was.

13. The s. 17(1) of the The 1991 Act interim care order application was heard on 20 July 2015. The application was refused in

circumstances where mother had agreed to "voluntary care" under s. 4 of The 1991 Act.

14. The Child and Family Agency appealed against the refusal of the interim care order. The notice of appeal is dated 31 July 2015

and is in the following terms:-

"the Child and Family Agency... hereby appeals... from so much of the decision made by the judge of the District Court on

20 July 2015, as declared, namely the refusal by the court for an interim care order to be awarded where the court did

not make a determination in relation to threshold being reached and refused the application on the basis that an order

was not required where [G] was in agreement to F remaining in care under a voluntary arrangement"

15. The appeal was listed for hearing in the Circuit Court on 24th November 2015, where the order was in the following terms:-

"Appeal Withdrawn. Affirm the District Court Order by consent".

16. The application under s. 18(1) of the The 1991 Act which had been issued on 15 July 2015 does not appear to have been opened

to the court on 20 July 2015. This is in accordance with the usual practice in this court, where interim care order applications under

s. 17(1) of The 1991 Act are generally heard on or shortly after the initial date for which they are issued, while care order

applications under s. 18 of The 1991 Act are generally heard some time after the initial date for which they are issued, on fixed

hearing dates.

17. It appears that the social workers dealing with the case were of the belief that the refusal of the interim care order application on

20 July 2015 also disposed of the care order application [see paras 30 and 33 of the longer affidavit of Ms D, social worker sworn 10th

January 2017]. That belief was in my view mistaken. In any event no order was made on the foot of s. 18 of The 1991 Act application

on 20 July 2015, nor was that application referred to in the notice of appeal, or in the order on appeal, and no further application was

made to this court by the Child and Family Agency on foot of the s. 18 of The 1991 Act notice of application dated 15 July 2015. I

therefore deem the s. 18 of The 1991 Act application dated 15th July 2015 to have been abandoned by the Child and Family Agency

at latest on 24th November 2015, but most likely before that.

18. The applications in 2015 referred to above, for the emergency care order, interim care order and care order, and the appeal, are

hereafter together referred to as the 2015 proceedings.

19. On 29 July 2016 the Child And Family Agency issued notice of an application for an interim care order pursuant to s. 17(1) of The

1991 Act, and also notice of application for a care order pursuant to s.18(1) of The 1991 Act, for hearing on 9th August 2016. G and

D were named as respondents.

20. In respect of the said proceedings under The 1991 Act of which notices were issued on 29 July 2016, it appears that those

notices were lodged with the court on a date between the 29th July 2016 and 9th August 2016 (Ms D social worker in her longer

affidavit dated 10th January 2017 at paragraph 36 avers that the notices were lodged on 2nd August 2016). The court was seised of

these proceedings on a date between the 29th July 2016 and 9th August 2016 and it is immaterial as to which of those dates it was.

21. On 9 August 2016, this court heard the application for an interim care order pursuant to s. 17(1) of The 1991 Act, which was

granted, to 6 September 2016. F has remained in the care of the Child and Family Agency since 9 August 2016 under the initial interim

care order granted and under a series of extensions of the interim care order, the latest extension granted on 7 February 2017 to

expire on 8 March 2017.

22. The application pursuant to s. 18(1) of The 1991 Act, which was issued on 29 July 2016, has not been opened to the court nor

has a hearing date for it been sought or fixed. That application presently stands adjourned to 8 March 2017.

23. On 4 October 2016, on an application for extension of the interim care order, the court noted that its jurisdiction should be

determined. This was clearly a reference to determination of jurisdiction in accordance with The Regulation.

24. On 1 November 2016, on an application for extension of the interim care order, the issue of jurisdiction was again raised. It

appears that discussion may have centred on the possibility of transfer of the case to The Member State under Art. 15 of The

Regulation. No determination was made under The Regulation on that date.

25. On 29 November 2016, on an application for extension of the interim care order, the court referred to The Regulation, and fixed 15

December 2016 for hearing of the necessary inquiry.

26. On 15 December 2016, the matter of the inquiry pursuant to The Regulation came before me for hearing. It was clear that the

affidavit filed by the Child and Family Agency was in contemplation of an application under Article 15 of The Regulation. G said that

she was expecting (correctly) on that day to deal with an enquiry regarding jurisdiction. I was not satisfied that B was on notice of

the jurisdiction inquiry, or any other inquiry that might follow under The Regulation. I adjourned to 6 January 2017, to allow for filing

an affidavit evidence relating to habitual residence issues, and for notice to be given to B.

27. On 6 January 2017, I part heard the inquiry regarding jurisdiction under The Regulation. Reserving the right of B to make

submissions, I heard the parties present and the guardian ad litem on the issue of the date on which this court was seized under

article 16 of The Regulation. I ultimately adjourned, part heard, to 13 January 2017.

28. On 13 January 2017, and again on 1 February 2017, and again on 7 February 2017 I further adjourned the jurisdiction inquiry in

effect to facilitate B who had indicated positively to the Child and Family Agency solicitor that he was in the process of instructing

solicitors. I required the Child and Family Agency solicitor to notify B that the matter would proceed on 14 February 2017. I formally

joined B as a party to the proceedings for the purpose of The Regulation enquiries and for the purpose of dealing with paternity.

Date on which the court was seised of the proceedings

29. On 14 February 2017, having allowed what I consider to be adequate opportunity for B or his lawyers to attend, I proceeded to

decision on the issue regarding seizing of the court for the purposes of Article 16 of The Regulation.

30. I had previously heard submissions in this regard, including submissions that the seizing of the court of the 2015 proceedings, in

July 2015, was rendered continuous by virtue of the Child and Family Agency taking protective measures in respect of F (i.e.

"voluntary care") from birth to present, that therefore the court was seised in July 2015 and examination as to jurisdiction should be

as to that date. Re M (a minor) 1994 FLR 577, and Derbyshire Co Co v F and C [2014] EWFC 26 at paragraph 36 were opened in this

regard]. I had also heard submissions that the proceedings commenced in July 2015 had been completed, and that the court is now

seised of the proceedings commenced in July 2016 and examination as to jurisdiction should be as to that date.

31. I have considered all of the submissions made. I do not find that the continuance of protective measures (i.e. "voluntary care") in

the period from July 2015 to July 2016 can render the seisin of proceedings by the court continuous, in circumstances where the 2015

proceedings came to an end at the latest on 24 November 2015 by way of withdrawal of the appeal and the abandonment of the s.

18 of The 1991 Act application, and the 2016 proceedings did not commence until 29 July 2016 or thereabouts. The court was seized

of the 2015 proceedings from 13 July 2015 or thereabouts, to at the very latest 24 November 2015. The court should have examined

jurisdiction in 2015, but it did not. The court became seized again on 29 July 2016 of a new set of proceedings. The court took up

examination of jurisdiction per The Regulation in the context of the 2016 proceedings. I hold that examination as to jurisdiction now

should refer to the date on which the court was seised of the 2016 proceedings. The court was seised of the 2016 proceedings on a

date between the 29th July 2016 and 9th August 2016 (hereinafter "the relevant date"). It is immaterial on the facts of this case as

to which of that range of dates it was.

Habitual residence

32. The habitual residence of F (if any) on the relevant date must be determined.

33. The parties have opened various cases regarding habitual residence.

34. The test for habitual residence under The Regulation is generally accepted as being that set out in A (Case -523/07) ECJ.

35. Para 33 of A (Case -523/07) ECJ states:-

“....the physical presence alone of the child in a Member State, as a jurisdictional rule alternative to that laid down in

Article 8 of the Regulation, is not sufficient to establish the habitual residence of the child.”

36. Paras 37 to 42 of A (Case -523/07) ECJ state

“37 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.

38 In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of

showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some

degree of integration in a social and family environment.

39 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.

40 As the Advocate General pointed out in point 44 of her Opinion, the parents’ intention to settle permanently with the

child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the

host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be

constituted by lodging an application for social housing with the relevant services of that State.

41 By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a

peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.

42 In the light of the criteria laid down in paragraphs 38 to 41 of this judgment and according to an overall assessment, it

is for the national court to establish the place of the children’s habitual residence.”

37. The parties have also referred to a number of other cases where the question of determination of habitual residence was dealt

with including Mercredi v Chafe (Case C-497/10PPU) ECJ, A v A (Children: Habitual Residence) [2013] UKSC 60, Derbyshire County

Council V F and C, [2104] EWHC 26.

38. In addition to the facts set out at paragraphs 5 - 9 above, in considering determination of habitual residence, the following

additional matters are relevant.

39. G has a child with D, namely R (born xxxx 2014). R was the subject of child protection proceedings in The Member State and was

made the subject of a care order, apparently on 6 February 2015.

40. G arrived in Ireland at the end of March 2015.

41. G says that she came to Ireland to escape from an alleged abusive relationship with D. She says that despite the relationship

ending in 2014 there continued to be some contact (she implied a controlling relationship) prior to her leaving The Member State.

42. G was approximately 24 weeks pregnant when she arrived in Ireland. She says that she did not know that she was pregnant at

that time, but she felt sick when travelling to Ireland and that subsequent to her arrival she realised she was pregnant. In evidence

she said that when she was pregnant with R she had known she was pregnant within weeks. In evidence she said she was aware that

R had been received into care and that it was likely that there would be an application to take any child subsequently born to her into

care.

43. G travelled to Ireland with one week's clothing and €150. She says (at paragraph 10 of her affidavit) that her trip to Ireland was

initially intended "as a holiday" and was "largely on the spur of the moment". She did not book any accommodation, nor does it appear

that she made any advance arrangements such as transferring benefit payments, medical records and medical attention, or any

similar such arrangements.

44. I do not accept G's evidence regarding her reasons for travelling to Ireland. I hold on the balance of probabilities that she was

aware of her pregnancy prior to her departure from the Member State and that the primary reason for her travelling to Ireland was to

avoid the attention of The Member State’s child protection authorities.

45. In her affidavit, G states that in the 6 - 9 months prior to her travelling to this jurisdiction, she resided full time with her parents.

Since her arrival in Ireland, G has stayed in hostel accommodation. She has also stated that prior to the relevant date she applied for

local authority housing in Ireland. At the relevant date she had not been allocated housing.

46. G states that she has formed some relationships over time with some of the residents of her accommodation and to some extent

with staff of her accommodation.

47. Following her arrival in Ireland, G applied for social welfare payments. Her claim dated 20th of April 2015 was refused, on appeal,

on "habitual residence" grounds (being "habitual residence" in a social welfare context). Her affidavit, at paragraph 20, implies that an

appeal was allowed, but her affidavit exhibits a letter of 14 July 2015, the exhibited letter states the opposite. Nevertheless, her

affidavit also exhibits social welfare payment slips for various dates throughout 2015. Her affidavit also states that whatever difficulty

there was initially with social welfare payments had been resolved by August 2015 and that she has been in payment since, which is

not disputed.

48. G has not worked since her arrival in Ireland. She has attended a parenting course but has not been, and is not now, otherwise

involved in education.

49. After her arrival in Ireland, mother attended appropriately for maternity care.

50. G gave oral evidence that her sister, F's aunt, resides in Ireland although this is not referred to in her affidavit of 14 December

2016 which was directed to deal with issues arising under The Regulation.

51. F was born in Ireland on 11 July 2015 and F’s entire life has been spent in Ireland from birth to the relevant date (and since). F is

an Irish national and holds an Irish passport since June 2016. In the absence of an affidavit of laws, it is not clear whether F has an

automatic right to citizenship in The Member State - mother’s home country – such entitlement has not been conceded by mother.

52. The reality of F's life to date is that F was received into care within hours of birth, and has remained in the care of the Child and

Family Agency, initially under s. 12 of The 1991 Act for a short period, then under s. 4 of The 1991 Act to 9th August 2016, and

under s. 17 of The 1991 Act from 9th August 2016 to the present. F was placed with foster carers immediately on reception into care

in July 2015, with whom F remained until 9th August 2016, and with whom F has remained since 9th August 2016, to date.

53. The guardian ad litem (who was first appointed on 9 August 2016) reports, and it is I would suggest patent, that F's primary

attachment is with F’s foster carers. I hold that on the balance of probabilities that at the relevant date, F’s primary attachment was

to F’s foster carers.

54. F has regular access with mother. F's father (whichever gentleman that is) resides in The Member State. F has not had any

contact with father. F's sibling, R, resides in The Member State, there has been no contact between F and R. It appears from G's

affidavit that F's maternal grandparents reside in The Member State. There has been no evidence as to any further extended family

on the maternal or paternal side, in particular there is no evidence of any such extended family residing in Ireland. F has not had

contact with any "extended family" other than the aunt.

55. At paragraph 29 of her shorter affidavit of 10 January 2017, Ms D the allocated social worker says that "… [F's] current placement

is a short term placement and [F] will have to move at some stage in the future". In oral evidence she said F's current carers are

available to care for F "as long as is required". F’s current placement is where F was placed on the relevant date. That placement was

not, on the relevant date, available in the long term.

56. The Child and Family Agency carried out a psychological assessment of G, which was reported on 16th June 2016.

57. At paragraph 36 of her longer affidavit dated 10th January 2017, Ms D avers that

"I say the applications ....were filed ....on 2nd August 2016 following the conclusions of Dr K in her assessment and where

G was indicating that she was no longer in agreement to F remaining in care pursuant to a voluntary agreement".

58. It appears from paragraph 28 and 29 of Ms D's shorter affidavit of 10 January 2017 and from previous affidavits and reports,

including reports of the guardian ad litem, that the long term plan under consideration by the Child and Family Agency is that F should

not return to the care of mother, but could be placed in the same placement as F’s sibling R, in The Member State. I hold that such

was the long term plan under consideration by the Child and Family Agency at the relevant date.

59. In the context of all of the above, the court has to consider its jurisdiction under The Regulation. The court, as set out, considers

it proper to examine jurisdiction on the basis of being seized on or about 29 July 2016.

60. A (Case -523/07) ECJ provides a non-exhaustive list or sample of factors that may be considered in establishing the child's

habitual residence (essentially confirmed and followed in Mercredi v Chafe and the other cases referred to).

a) Duration of stay:

At the relevant date, F had been physically present in this country for F’s entire life, a period of approximately 13

months. The duration of F’s physical presence is significant, but is not determinative. As per para 38 of "A", In

addition to the physical presence of the child in a Member State other factors must be chosen which are capable of

showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects

some degree of integration in a social and family environment. [emphasis added].

b) Regularity of stay

There is no issue as to "regularity", in the sense that both G and F are entitled to be in the jurisdiction.

c) Conditions of stay

For the purpose of this decision, I regard "conditions" as meaning physical conditions. The physical conditions of F's

stay in the jurisdiction are that F has been cared for by foster carers since discharge from hospital post birth, and

F’s "conditions" have therefore been good. G's "conditions" have been that she has stayed in hostel accommodation

throughout.

d) Reasons for the stay in the member state and the family's move to that state

As set out at paragraph 44 above, I hold on the balance of probabilities that the primary reason for G travelling to

Ireland was to avoid the attention of The Member State’s child protection authorities. I further hold that on the

balance of probabilities the primary reason for G's stay in this state up to the relevant date was similarly to avoid

the attention of The Member State’s child protection authorities. I further hold on the balance of probabilities that

the primary reason for F to be present in the state from birth to the relevant date is because of G continuing to

avoid the attention of The Member State’s child protection authorities in respect of F.

e) The child's nationality

As set out at paragraph 51, F is an Irish national. F holds an Irish passport since June 2016. In the absence of an

affidavit of laws, it is not clear whether F has an automatic right citizenship of the Member State – such

entitlement has not been conceded by mother.

f) The place and conditions of attendance at school

Not relevant given F's age

g) Linguistic knowledge

Not relevant given F's age, …and [REDACTED]

61. The next matter in the non exhaustive list in A (Case -523/07) ECJ for consideration is "the family and social relationships of the

child in the state".

• At the relevant date, the extent of F's family and social relationships with F’s biological family was that F was having

access with mother three times weekly, 2.5 hours on each occasion, under supervision. F was having no contact with F’s

father, sibling, or any other relative except whatever contact may have occurred with F’s aunt in company with mother.

• Having considered both A (Case -523/07) ECJ and Mercredi v Chafe, I am of the view that the reference to "family" in

this context in those cases is to the birth families of the subject children of those cases. I refer to paragraph 54 of

Mercredi, as follows:-

“54. As a general rule, the environment of a young child is essentially a family environment, determined by the

reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.”

62. In my view, the context indicates that the "reference person" in that case was mother, where the dispute was essentially

between parents.

63. In A v A (Children: Habitual Residence) [2013] UKSC 60, at para 54 (vi) the social and family environment of an infant or young

child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of

that person or persons in the social or family environment of the country concerned.

64. This might be interpreted as including an infant's social and family environment with foster carers, (although I am by no means

certain that such interpretation is correct). If that is a correct interpretation, then F has "some degree" of integration in a social and

family environment with F’s foster carers. In my view however such family and social relationships as F has with his foster carers are

fundamentally temporary in nature in that F’s placement with the foster carers is and always has been short term, and whatever

attachments F may have with the foster carers will be ended when F’s current short term placement ends.

65. Finally, in A (Case -523/07) ECJ, there is reference by way of example as to indicators of parental intention by reference to

accommodation. As noted, G has apparently applied for social housing in Ireland. It does not appear that she surrendered any

accommodation in the Member State, or indeed that she had any such accommodation to surrender. In any event, I do not doubt

that it is mother's intention to remain in Ireland, and to seek to have F returned to her care in Ireland.

66. In addition to the factors set out in the non-exhaustive list in A (Case -523/07) ECJ, I have also considered that F was in the

care of the Child and Family Agency under s. 4 of The 1991 Act from 13th July 2015 to the relevant date. It follows that in that

period, it appeared to the Child and Family Agency that F required care or protection that F was unlikely to receive unless taken into

its care, and that mother accepted that this was the case. Nevertheless, during the period from 13th July 2015 to the relevant date,

apart from carrying out a psychological assessment of G, there was no progress with long term planning for F. "Voluntary care" under

s. 4 remained terminable at any time by G, and in that sense lacked any real stability.

67. Considering matters as at the relevant date, in summary, physical presence alone does not determine habitual residence; the

duration of F's presence in this jurisdiction, F’s nationality, and F’s social and family relationships with the foster cares (in so far as

they are relevant) are supportive indicators of habitual residence having been established; the reason for F being present and staying

in the state, and the reason for F’s mother being present and staying in the state, the minimal degree of family and social integration

of F with mother and other relatives, the fact that F’s foster care placement is short term and that such attachments as F may have

with the carers will end, the fact that F’s placement in the context of "voluntary care" lacks stability, the fact that the only long term

plan in existence is placement with R in the Member State, are contra indicators of habitual residence having been established. On

balance, considering all of these factors, I conclude that F’s presence in the state has not been established as "not temporary", nor

has there been the requisite degree of integration in a social or family environment, to establish habitual residence in Ireland.

68. I must also consider Article 17 of The Regulation, which provides as follows:

Examination as to jurisdiction

Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of

another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

69. I do not consider that the facts of this case, as set out, establish that F is habitually resident in another Member State.

70. I do not consider that the facts of this case, as set out, establish that F is habitually resident elsewhere.

71. I am unable to establish F's habitual residence.

72. The circumstances of this case are quite extreme, in that they involve a child whose presence in the state is due to the mother

avoiding the attentions of child protection authorities in her home state, a child who has been in the care of his mother for a few

hours of the child’s life, a child who has spent a significant time in a short term placement, a child in respect of whom there has been

considerable confusion and delay in legal processes. It is important that the long term future of F be resolved as soon as possible.

Brendan Toale

Judge of the District Court

1st March 2017