District Court dismisses Article 12 jurisdiction claim due to lack of agreement, applying Article 13 instead.

[2017] IEDC 11

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

G

-AND -

OTHERS

RESPONDENTS

C, GUARDIAN AD LITEM TO F

In the matter of child F

(Number 2)

[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. On 1st March 2017, for the reasons set out in written decision of that date (“the first decision”), I decided that I was unable to

establish the habitual residence of F. In those circumstances jurisdiction is not determined by Article 8 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).

2. The court must now determine where jurisdiction lies, in accordance with The Regulation.

3. The court heard the matter further on 16 March 2017 and heard oral submissions from the Child and Family Agency, mother and the

guardian ad litem.

4. So much of the relevant facts of the case as have been set out in the first decision will not be repeated here, and any further

relevant facts will be set out only as necessary for the purposes of this decision.

5. Articles 9, 10, 11 of The Regulation do not assist with determining jurisdiction in this case.

6. Article 13 of The Regulation provides as follows:-

“Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12,

the courts of the Member State where the child is present shall have jurisdiction”.

7. The relevant part of Article 12 of The Regulation provides as follows:

3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than

those referred to in paragraph 1 where:

the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the

holders of parental responsibility is habitually resident in that Member State or that the child is a national of that

Member State;

and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the

parties to the proceedings at the time the court is seised and is in the best interests of the child.

8. The following matters are not in dispute:

1. That before determining that this court has jurisdiction under Article 13 of The Regulation based on the presence of the

child in this state, the court must determine whether jurisdiction can be determined on the basis of Article 12 of The

Regulation.

2. That these proceedings are “proceedings other than those referred to in paragraph 1” [of Article 12 of The Regulation];

3. F has a substantial connection with this state by virtue of the fact that F is a national of this state.

9. The submissions and argument have therefore concerned Article 12 (3)(b) of The Regulation.

10. In the first decision, I determined that the examination as to jurisdiction should refer to the date on which the court was seised of

the “2016 proceedings” (hereinafter “the proceedings”). I now further hold that for the purpose of Article 12 (3)(b) of The Regulation

that the court was seised of the proceedings on a date (hereinafter “the relevant date”) between the 29th July 2016 and 9th August

2016, most probably on 2nd August 2016 (paragraph 57 of the first decision) but in any event prior to the commencement of the

hearing on 9th August 2016

11. It is not disputed that the Child and Family Agency and mother were parties to the proceedings at the relevant date.

12. Whatever about the question of whether the guardian ad litem is now a party to the proceedings (and I am not deciding that

issue), I am satisfied that in any event the guardian ad litem was not a party at the relevant date. It is clear from the court record

that the guardian ad litem was appointed after the court had concluded hearing of the interim care order application on 9th August

2016, and I consider that there is no construction of the various sections of the Child Care Act 1991 (particularly sections 26 and 25)

and / or The Regulation and / or case law that can lead me to a conclusion that the guardian ad litem was a party on the relevant

date.

13. I have been referred to the Practice Guide for the application of The Regulation, (which is not binding), particularly in respect of

Art. 12(3)(b) of The Regulation. Taking into consideration the differences between Article 12(1) of The Regulation and Article 12(3) of

The Regulation, I read the practice guide as indicating that the parties to the proceedings at the relevant date must unequivocally

accept jurisdiction at the relevant date, and that it is not sufficient that the parties to the proceedings at the relevant date

unequivocally accept jurisdiction at any date after the relevant date.

14. This issue was discussed in I (A Child) [2009] UKSC 10, which has been referred to in the submissions. In that case the UK

Supreme Court, having expressed different opinions on the issue, ultimately appears to have considered that a referral to ECJ might

be required to resolve it.

15. Both mother and the guardian ad litem opened case L v M and ors [C-656/13], In that case, the following is stated at paragraphs

55 and 56:

“55. According to the actual wording of Article 12(3)(b) of Regulation No 2201/2003, the jurisdiction of the court chosen

must have ‘been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the

time the court is seised’. Article 16 of that regulation states that a court is deemed to be seised, in principle, at the time

when the document instituting the proceedings or an equivalent document is lodged with the court.

56 The clear wording of that provision, read in the light of Article 16, thus requires the existence to be shown of an

agreement, express or at least unequivocal, on the prorogation of jurisdiction between all the parties to the proceedings,

at the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the

court chosen.”

16. “International Movement of Children: Law, Practice and Procedure” Lowe, and Nicholls, 2nd edition, at paragraph 4.36, inter alia

says the following in relation to Article 12(3)(b) of The Regulation:

“As to the time at which the parties must agree to the prorogation of jurisdiction, L v M and ors [C-656/13] made it clear

that an agreement, express or at least unequivocal, must be in place between all parties ‘at the latest at the time when

the document instituting the proceedings or an equivalent document is lodged with the court chosen’”

17. Per paragraph 56 of C-656/13, breaking down what is required:

“The clear wording of that provision [Article 12(b)(3) of The Regulation], read in the light of Article 16, thus requires

(i) the existence to be shown of an agreement

(ii) express or at least unequivocal

(iii) on the prorogation of jurisdiction

(iv) between all the parties to the proceedings

(v) at the latest at the time when the document instituting the proceedings or an equivalent document is lodged

with the court chosen.”.

In my view, all of these elements must be present – the absence of any element precludes jurisdiction under Article 12(3) of The

Regulation. This is a strict interpretation, which sets a high bar.

18. Taking elements (i) and (iii) together, what must be shown is the “the existence to be shown of an agreement, on the prorogation

of jurisdiction”. Prorogation in my view implies selection, in advance of proceedings, of the court which is to have jurisdiction.

19. Taking elements (i) and (v) together, what is required is “the existence to be shown of an agreement at the latest at the time

when the document instituting the proceedings or an equivalent document is lodged with the court chosen.”. Agreement subsequent

to lodgement of the document instituting proceedings is simply insufficient.

20. Taking elements (i) and (ii) together, what must be shown is the “the existence … of an agreement, express or unequivocal”.

There is no evidence of any written or otherwise express agreement between the Child and Family Agency and mother on the

prorogation of jurisdiction.

21. What is in effect contended (by mother) is that there was an “at least unequivocal” agreement. I interpret “unequivocal” as

meaning without reservation, unambiguous and unmistakeable. I interpret the expression “at least” as emphasising that nothing less

than unequivocal is sufficient. It follows from paragraph 17 above that such “at least unequivocal” agreement must have existed “at

the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen.”

22. Mother submits that at the relevant date she accepted the jurisdiction of the court, instructed a solicitor, appeared in the court

in due course, and did not express any concern that the Irish courts did not have jurisdiction in respect of F. Mother submits that

there is thus no difficulty in establishing that she was accepting the jurisdiction of the court. In my view however, there is a

significant difference between her accepting the jurisdiction of the court (by not raising any issue regarding jurisdiction), and the

existence of an unequivocal agreement between parties at the latest at the time when the document instituting the proceedings or

an equivalent document is lodged with the court chosen. Her acceptance of jurisdiction does not constitute an agreement between

the parties.

23. Mother also submits that it is “relatively easy” to establish the Child and Family Agency’s acceptance of the jurisdiction of the

court where the Child and Family Agency issued proceedings in this court and it was done in an unequivocal fashion, without an

express proviso that the proceedings were being issued for the purposes of measures under Article 20 of The Regulation or any

indication that the Child and Family Agency might not accept that the court had jurisdiction otherwise than under Article 20 of The

Regulation, and that a “simpliciter straightforward application” was issued without equivocation. Mother submits that it is very difficult

for a moving party that issues proceedings to say that it is not accepting the jurisdiction of the court where it issues the

proceedings. The Child and Family Agency maintains that it did not at any time unequivocally agree to or accept the jurisdiction of

this court, and that its issuing of proceedings without reference to Article 20 of The Regulation or otherwise calling into question the

jurisdiction of the court does not amount to an unequivocal agreement regarding the jurisdiction of the court. I do not find it

necessary to resolve this issue. Again, however, in my view, there is a significant difference between the Child and Family Agency

accepting the jurisdiction of the court (if not referring to Article 20 of The Regulation or raising any issue regarding jurisdiction can be

characterised as such), and the existence of an agreement between parties at the latest at the time when the document instituting

the proceedings or an equivalent document is lodged with the court chosen. Invoking the jurisdiction of the court does not constitute

an agreement between the parties.

24. Mother contends that an agreement between mother and the Child and Family Agency did exist regarding what is known as

“voluntary care”, i.e admission of F to the care of the Child and Family Agency pursuant to section 4 of the Child Care Act 1991. No

such agreement has been proved, but I am prepared to accept that a written agreement (by way of what is generally referred to as a

reception into care form) either exists, or such an agreement on such terms as are contained in a standard reception into care form

can be implied. It is not contended that any such reception into care form contains an express or specific agreement on prorogation

of jurisdiction. Mother contends that such agreement constitutes an unequivocal acceptance by her of the jurisdiction of the court,

and expressly or by implication contends that such agreement also constitutes an unequivocal acceptance of the jurisdiction of the

court by the Child and Family Agency.

25. If a “voluntary care” agreement contains an acceptance of jurisdiction, it is an acceptance of jurisdiction over the “voluntary

care” agreement, which might extend to an application under s. 47 of the Child Care Act 1991 brought by a party (or on the motion of

the court) in respect of a child subject to the “voluntary care” agreement. No such jurisdiction was ever invoked. I do not accept

that a “voluntary care” agreement constitutes an agreement for prorogation of proceedings outside of the “voluntary care”

agreement, such as these proceedings, or that any such term can be implied into a “voluntary care” agreement.

26. I am satisfied that there was in fact no agreement on the prorogation of jurisdiction, express or unequivocal, in existence

between mother and the Child and Family Agency at the relevant date. It may be that there is a deal of artificiality about discussion

of prorogation in circumstances where the relevant parties did not by agreement select a jurisdiction in advance. What had happened,

at its height, at the relevant date, is that the Child and Family Agency invoked the jurisdiction of the court, and mother had not

disputed this. Whatever may have been the similarity between the attitude of mother and the attitude of the Child and Family Agency

to the court’s jurisdiction, which respective attitudes mother and the Child and Family Agency formulated independently of each

other, and whatever else that may imply, it cannot in my view be characterised as an express or at least unequivocal agreement

between them on the prorogation of jurisdiction existing at the relevant date.

27. Mother submits (and it is not disputed) that Art. 12(3)(b) of The Regulation applies to public law cases such as this one. Mother

has submitted that it is unlikely in public law proceedings that there will ever be an express agreement between parties on the

prorogation of jurisdiction. She contends that an “open statement” accepting (which I understand to mean proroguing) jurisdiction as

between the parties is not required according to L v. M and ors C-656/13. Therefore, she submits, if Article 12(3)(b) of The

Regulation is going to apply, it is inevitable that it will apply to “otherwise unequivocal acceptance” rather than some form of

agreement between the parties. I believe this to be a misreading of L v. M and ors C-656/13. Paragraph 56 clearly states that it is

the agreement on the prorogation of jurisdiction, rather than “acceptance of jurisdiction” that must be “at least unequivocal”. The

effect of this interpretation may well be that it is verging on the impossible that there would ever be prorogation of jurisdiction in a

public law case. That may well be so, there is my view in any event a logic to this, that prorogation is appropriate to private law

proceedings (as a “limited form of party autonomy in proceedings regarding parental responsibility” (cf “Brussells II bis Regulation”,

Magnus and Mankowski, December 2011 p 154-5 para. 45)) but unlikely, by virtue of the very nature of public law proceedings

regarding children, and possibly for public policy reasons, to ever be appropriate to public law proceedings.

28. I am not satisfied that the existence has been shown of an agreement, express or at least unequivocal, on the prorogation of

jurisdiction between mother and the Child and Family Agency at the latest at the relevant date. Therefore agreement between “all

the parties to the proceedings” [element (iv)] does not exist.

29. As the elements (i) to (v), set out at paragraph 17 above, are not each present, the issue of whether jurisdiction under Article

12(3)(b) of The Regulation is in the best interests of the child does not arise

30. There is no necessity to deal with the party status, or otherwise, of D.

31. In my view, Paragraph 56 of L v. M and ors C-656/13 deals with the issues in this case. There is not in my view any requirement

for reference to the ECJ.

32. I am satisfied that jurisdiction in this case cannot be determined on the basis of Article 12 of The Regulation.

33. F is present in this jurisdiction. I am satisfied therefore that Article 13 of The Regulation applies, i.e “ the courts of the Member

State where the child is present shall have jurisdiction”.

Brendan Toale

Judge of the District Court

3rd May 2017