District Court stays child contact case to UK court under Regulation 2201/2003 for added value of evidence.

[2017] IEDC 21

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 3)

[Note #1: 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 children.

Note #2; This decision was delivered from notes and this version is prepared thereafter on basis of the digital audio

recording.]

1. For the reasons set out in my previous decisions, CFA v G and ors (No 1) [2017] IEDC 10 and CFA v G and ors (No 2) [2017]

IEDC 11 I have concluded that this court has jurisdiction over the substance of this case by virtue of Article 13 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).

2. I don’t propose to set out again the factual matrix set out in the previous decisions.

3. Article 15 of the Regulation provides:

‘1.By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they

consider that a court of another Member State, with which the child has a particular connection, would be better placed

to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)stay the case or the part thereof in question and invite the parties to introduce a request before the court of

that other member state in accordance with paragraph 4; or

(b)request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2.Paragraph 1 shall apply:

(a)upon application from a party; or

(b)of the court’s own motion; or

(c)upon application from a court of another Member State with which the child has a particular connection, in

accordance with paragraph 3.

A transfer made of the courts own motion or by application of a court of another Member State must be accepted by at

least one of the parties.

3.The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that

Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the

child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which

the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in

accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case this is in the best

interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In

this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise

jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities

designated pursuant to Article 53.

4. Since the later of my previous decisions, delivered on 3rd May 2017, and despite my inviting the Child and Family Agency on a

number of occasions to make an application under Article 15 in this court, the Child and Family Agency on 9th May 2017, 6 days after

the delivery of my second decision, commenced Article 15 proceedings in the High Court. As I understand it, those proceedings were

partially opened, and certain directions were made and assessments directed. The High Court proceedings did not conclude in time for

the hearing dates that had been set in this court, (10th to 14th July 2017), to be taken up.

5. On 19th July 2017, the Supreme Court delivered its decision in CFA v JD [2017] IESC 56. One of the consequences of that

decision is that Article 15 applications are now to be dealt with “in the first court that deals with a child care matter…” [para 33.1

CFA v JD, SC], which is by definition the District Court.

6. The Child and Family Agency indicated then that it intended to bring an Article 15 application in this court. This court had set

hearing dates for the hearing of the substantive matter, for 3rd to 6th October 2017, anticipating that the Article 15 matter would

have been decided by then. The court vacated those dates as to the substantive hearing, but retained them for the hearing of the

Article 15 application.

7. On 28th September 2017, the Child and Family Agency formally withdrew its application pursuant to Article 15. With no application

before it, the court considered that it would have to examine what, if any, the role of the court might be in the absence of an

application. On 4th October 2017, the court commenced consideration of Article 15.

8. This court considered whether this court has a discretion as to whether it should consider, (where there is a “particular

connection” as per Article 15.3.), that there is a court “better placed to hear the case”, when it is in the best interests of the child.

The court found that it did not have such a discretion, in particular as the best interests of the child are referenced, and that the

court could not have a discretion not to consider something that might be in the best interests of the child. Rather, the court is of

the view that its discretion is as to what to do if it considers there is a court “better placed” and it is in the child’s best interest, that

is to do either (a) or (b), and it seems to me that (a) or (b) is exhaustive. That also appears to arise from paragraph 5 of the

Supreme court in CFA v JD, SC:-

“ For the future, therefore, a court should set out, in its judgment and order, the basis upon which, in accordance with

the relevant provisions of Brussels IIR, it is either accepting or rejecting jurisdiction, and also the basis upon which, in

accordance with Article 15, it either has, or has not, decided to exercise its power under Article 15. The effect of this

will be to determine that the court has actually addressed issues which may not always have been addressed in the

past, and may, sometimes, be overlooked by the parties.

9. The court then considered whether there was a “particular connection”, as per Article 15.3. Having heard and considered the

submissions made, the court ruled that Article 15.3 (c ) applies. F is a citizen of the United Kingdom, and that establishes a

“particular connection” with the United Kingdom, even though there is dual nationality [i.e also an Irish citizen].

10. The court considered that the only other “particular connection” that might arise is Article 15.3 (d), but did not rule on that, as

the “gateway” referred at paragraph 33.5 (a) of CFA v JD, SC exists by virtue of the finding under Article 15.3 (c ).

11. The court also considered whether, if all the parties and the guardian ad litem indicated in advance that they would not “accept”

a transfer made of the court’s own motion, the court should not spend time examining the issues. Having heard and considered

submissions the court ruled that the issue of “acceptance” could only arise after the court had considered the matters in Article 15.1,

and indicated that it proposed to do either Article 15.1 (a) or (b), presumably giving reasons, which ought to be considered by the

parties in deciding whether to “accept”. Therefore the court proceeded.

12. It became apparent that the Child and Family Agency and the guardian ad litem were of the view that while the courts of the

United Kingdom might be better placed to hear the case, they were also of the view that it would not be in the child’s best interests

to transfer the case to the United Kingdom as this would involve the child moving to the United Kingdom, where the number and

nature of placements would be unpredictable, to the detriment of the child. This appeared to the court to be premised on an

assumption that moving the case requires moving the child. Noting the submissions, particularly those of the respondent mother, that

this inevitably arises from the decision of Cobb J in In Re LM [2013] EWHC 646 Fam, the court nevertheless expressed the view

that the truth of such an assumption was not manifest, particularly in light of Child and Family Agency -v- RD [2014] IESC 47 and

especially in light of what is said at paragraph 15 of that decision, (albeit that that is referenced to Article 17),;-

“ However such order [that is transfer of the child with the case] is not required by the Regulation”.

That is as far as that issue went, what had occurred was in essence discussion of the issue only, that issue is, if I can use the

expression, “parked”.

13. However, following that discussion, the Child and Family Agency modified its position, essentially to say that it considers the

United Kingdom courts to be better placed to hear the case, and that this would be in F’s best interest, provided that F did not move

to the United Kingdom until the final determination of the case, implicitly if not expressly, if not returning to mother’s care, that the

final disposal would involve one placement move only, whether that is in the United Kingdom or Ireland.

14. Having “parked” the issue of the necessity to transfer the child with the case, the court then reverted to the “modular” or “bit by

bit” approach to next consider that a court of another member state would be better placed to hear the case.

15. Diverting for a moment, the court opened the possibility of transferring “a specific part of the case”. None of the parties or the

GAL displayed any enthusiasm, although perhaps humouring me by allowing that it might be theoretically possible. However on further

consideration, I can see no practicality in splitting the case. So, in essence, if anything is to be transferred, if there is to be any

request for a transfer, it will be for all to be transferred.

16. Again I have considered the oral and written submissions of the parties, except unfortunately the Child and Family Agency’s

written submissions which arrived too late to be considered.

17. In deciding whether there is a court “better placed”, what should the court consider, what is the test? In CFA v JD, ECJ C-

428/15, the ECJ says at paragraphs 56 and 57

“56 Consequently, it remains the task of the court having jurisdiction to determine, secondly, whether there is, in the

Member State with which the child has a particular connection, a court that is better placed to hear the case.

57 To that end, the court having jurisdiction must determine whether the transfer of the case to that other court is

such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child, as

compared with the possibility of the case remaining before that court.

In that context, the court having jurisdiction may take into account, among other factors, the rules of procedure in the

other Member State, such as those applicable to the taking of evidence required for dealing with the case. However, the

court having jurisdiction should not take into consideration, within such an assessment, the substantive law of that other

Member State ….

18. Similarly, at paragraph 33.5 (c ) and (d) of CFA v JD, SC

(c) To establish that a court is “better placed”, it must be proved that the transfer of the case to that court would

provide genuine and specific “added value” with respect to the decision to be taken.

(d) In considering whether there will be such “added value”, the court may not have regard to the nature of the

substantive law of the other state, but may have regard to the rules of procedure therein.

19. The respondent has raised the issue or the question of the term “proximity”, which is referred to in both the ECJ and SC

decisions. I find some difficulty in dealing with this. It seems to be that where there is a “particular connection” established, that

some exercise is referred to as to the degree of proximity.

20. I observe that paragraph 45 of CFA v JD, ECJ, the ECJ says:-

45. In order to ensure that the best interests of the child are taken into consideration when applying the rules of

jurisdiction established by Regulation No 2201/2003 in matters of parental responsibility, the EU legislature had recourse,

as is stated in recital 12 of that regulation, to the criterion of proximity.

This would appear to indicate that when we are talking about “proximity”, it is in order to ensure that the best interests of the child

are taken into consideration. That is not where I am “at” in the inquiry under article 15, at this stage.

21. In any event, recital 12 of the Regulation, which is referenced, provides:-

(12) 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 does not appear to refer to Article 13 at all. Be that as it may, I have already decided that the child is not habitually resident,

the basis of the court’s jurisdiction is Article 13.

22. In so far as it was referenced by the respondent, and in so far as it relates to the child, this court’s jurisdiction rests

where it rests, because of what I decided with regard to the date of seisen, and that is how the court took jurisdiction.

But even if I were to reconsider the matter of habitual residence at this stage, in my view nothing has changed, in

terms of the reasoning on which I approached it, except that the child has been here five months longer, and has gone

to playschool. Outside of that I am of the view that there has been no material change.

23. It may be that the issue of “proximity” will have to be re-opened at the “best interests” stage.

24. Back to the particular test, which is at paragraph 57 of CFA v JD, ECJ, and effectively repeated in CFA v JD, SC. The Child and

Family Agency has submitted and I think that the guardian ad litem has agreed that the court best placed is the court with the most

information. While it is not binding, the opinion of the Advocate General in C-428/15 at paragraph 99 says:-

99. To that end, the first court must ensure that the judgment relating to parental responsibility will be given by the

court which has the closest connection with the relevant elements of the particular case.

That would seem to be a similar summary (to that of the Child and Family Agency and guardian ad litem).

25. I said in the course of the argument that it seems to me that the evidence in relation to child R is entirely in the United Kingdom.

[R is mother’s older child who was subject of child protection proceedings in the United Kingdom and is currently in care in the United

Kingdom]. The evidence in relation to child F is entirely in this jurisdiction. The evidence in relation to mother is in both jurisdictions.

26. There are issues both in relation to the quantity of the evidence and to the relevance of the evidence to the issues involved. In

light of some of what was said in the course of the argument, I felt I had to do a couple of things, and I have done them. One is that

I have read the judgement of Judge J [Case No xxxxxx], not so as to educate myself or come to any conclusion, but as to what

evidence was given and what evidence was considered. I have also gone back to the record of the s17 (1) Child Care Act 1991

interim care order application on August 2016.

27. Doing it in reverse order, I understood (and I may have misunderstood) that it was suggested that the interim order application

was contested. It wasn’t. I refer to the record. It is noted that mother accepted, without prejudice, the “final statement” of Ms M

[United Kingdom social worker], also agreed to the decision of Judge J being admitted, and similarly Dr K’s report, all on the same

“without prejudice” basis. Formal evidence was taken from a number of witnesses. Mother did not contest the application. I have not

gone back to the digital audio record – it may have been a situation where mother did neither one nor the other, [neither consented

or opposed]. As it was an interim care order, quite properly an amount of evidence had to be opened anyway, regardless of mother’s

view, and it was opened. The evidence that was opened, it was opened in a s17 1991 Act application to a s17 threshold, and (from

mother’s standpoint) “without prejudice”.

28. In relation to the judgement of Judge J, I have read it to get a feel for the amount of evidence. Apart from its detail and setting

out, - an object lesson - at paragraph 8, it refers to relevant written material and documents in the trial bundles considered. In the

course of the hearing Judge J heard evidence from a number of individuals – they are listed, there are four, (as referred to in

submission by the respondent) namely the social worker, the mother, the father, and the [UK] guardian ad litem to R, were the people

who gave evidence. However it is immediately apparent from reading the judgement that there is an enormous volume of evidence

that is also considered. That is the police evidence, the police statements which are constantly referenced throughout the judgement

in relation to how decisions were reached, particularly regarding credibility. Hospital records are referenced. Phone records are at

least referred to in the context of police statements. I am not sure as to the extent that it may have contributed to any decision, but

there was evidence in relation to another child, T. It appears to me that there is a mass of potentially contestable evidence. I don’t

know, and it is not clear from the judgement, how that evidence was admitted, it may have been admitted by consent, it may be

procedural, it may be that the manner in which evidence is dealt with in the United Kingdom allows for such admission, I certainly

know that there is considerable difference (between this jurisdiction and the United Kingdom) in relation to the law regarding hearsay.

My experience of evidence of that nature is that it is very contestable, and there is nothing to indicate that it would not be

contested [in this jurisdiction]. It may be a procedural difference or deficit between here and the United Kingdom, but both the ECJ

and the SC said in CFA v JD that procedural issues are something I can consider.

29. There was a suggestion in the argument by the respondent that the reason or primary reason for F to be in care in this

jurisdiction was on the basis of the findings in Dr K’s report. I am sorry to say that I find that to be a preposterous suggestion. It is

absolutely evident that the reason why this child…why there was any consideration given to proceedings being brought in this case,

in 2015 or in 2016, was in respect of the apprehended risk arising by virtue of what had been found to have occurred in relation to R,

which in short is that R suffered non-accidental injuries in a closed pool of perpetrators of two, mother and D. Everything flows from

that. It may be that the assessment of Dr K indicates other issues, but that assessment, no more than anything else, would never

even have been done if it wasn’t for the issue that arose in relation to R.

30. Mother has not engaged with that. At paragraph 8 of her affidavit sworn for the High Court but which has effectively been

introduced here, she says

“at the time I did not suspect D, but now I think I should have done”

That is in respect of the allegations regarding R. It is not entirely clear what case mother presented in the United Kingdom, but it

would appear from the above that the case that is at least contemplated now is that the perpetrator was D. Whether that is a new

version, I am not entirely sure. But what it does lead to is this – D is an essential witness in this case. He is not compellable by this

court.

31. The evidence in relation to R and what happened to R is crucial in decision making in respect of F. Reference was made to Health

Service Executive -v- M.W. & anor [2013] IEHC 280, where Bermingham J said at paragraph 13

“Often the best indication as to what is likely to happen in the future is to be found in what has happened in the past”

I have made a similar point in Health Service Executive -v- B & anor [2013] IEDC 13, that how a parent has interacted with

another child is essential to be considered in the context of a decision in relation to the child who is before the court.

32. No matter where this case is heard, there are likely to be witnesses that have to travel. Mother has quite rightly raised the very

particular and specific question of mother being present in this jurisdiction, and in every expression that she has made to this court

she intends to stay here. Mother maintains that she is habitually resident here – I have not made any finding in relation to that – I am

not suggesting that she isn’t. In any event she is here. As a party, her access to the court and her attendance at court is very

important. However, and I appreciate that this cuts both ways, the United Kingdom is not all that far away. Mother has family

connections and so on in the United Kingdom. All witness can travel.

33. The genuine and specific added value to the case being heard in the United Kingdom is access to D, who is not compellable here,

and on the basis of my analysis of what has been said, it would appear that D is a desirable witness. All the records of the police, the

phone records, the hospital records, the medical records, are all in the United Kingdom. They are clearly admissible in the United

Kingdom, and have been established to be so because they are referred to in the decision of Judge J. It is at least questionable as to

the extent to which they would be admissible or admitted here.

34. There is referenced, particularly in the CFA v JD, ECJ a presumption – paragraph 49:-

49 Against that background, Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the court of

a Member State that normally has jurisdiction to deal with a given case must, if it is to be able to request a transfer to

a court of another Member State, be capable of rebutting the strong presumption in favour of maintaining its own

jurisdiction, on the basis of that regulation, as stated by the Advocate General in point 90 of his Opinion.

It is “against the background” of paragraphs 45 – 48, which is the “proximity” part of the ECJ decision.

35. When mother’s counsel raised the issue of a presumption, I said there was no such presumption. To analyse that a little further,

paragraph 49 of CFA v JD, ECJ specifically refers to the advocate general’s opinion point 90, and in effect incorporates it. That

paragraph of the advocate general’s opinion says:-

90. If it wishes to apply Article 15(1) of Regulation No 2201/2003, the court which would normally have jurisdiction must

therefore find factors capable of rebutting the strong presumption in favour of the State where the child is habitually

resident. That examination must be carried out on the basis of an analysis in concreto, (40) since the court must

analyse why, specifically, those factors take precedence over its jurisdiction.

36. The presumption arises in the “habitual residence” case. I think I would have to accept that once jurisdiction arises under chapter

II of the Regulation, albeit that it is under Article 13, that there is some presumption that we would “hold on” to it, unless there is a

reason for it to go elsewhere, whether that would be the “added value” , but I would suggest that the “strong presumption”, which is

referenced to go to “habitual residence” and is in the context of “against the background” of the “proximity” issue which also refers

to habitual residence, is not as strong in the context of the Article 13 jurisdiction.

37. I am satisfied that whatever presumption there is, it is displaced by the added value that I have already described, that is the

availability of witnesses but in particular D and all of the records etc being in the United Kingdom.

38. Reference was made by the respondent to there having been a very short period of intervention by social workers with the family

in the United Kingdom, in comparison to the [length of the] intervention here. I am satisfied that the length of the intervention is not

necessarily relevant. The intervention with R was in respect of non-accidental injury. It is in respect of that, as said by Bermingham J

in Health Service Executive -v- M.W. & anor, at paragraph 13,

“Any court trying to decide what is in [the child’s] interest and in particular trying to decide whether [the child’s] mother

can safely have contact with[the child] or be permitted to care for [the child] will have to delve deeply into the history

of [mother] and see what conclusion can be drawn from what emerges.”

The relevant history in relation to mother in this case is in the United Kingdom, in relation to the non-accidental injury. By its nature,

that would not necessarily be over a long period of time. It is the importance of the issue in the context of the overall decision to be

made, it seems to me that it is crucial – we cannot in my view risk losing any definition or any accuracy or any available evidence in

relation to that issue, including D’s evidence.

39. I am satisfied that the test set out at paragraph 57 of CFA v JD, ECJ is satisfied, that the transfer of the case to another court

is such as it would provide genuine and specific added value, in so far as I have identified it, in respect of the decision to be taken in

relation to the child, as compared to the possibility of the case remaining here. I think all of those are comparative. Therefore I am

satisfied that the courts of the United Kingdom are “better placed”.

40. That concludes that part of the enquiry under Article 15. In so far as there may be some “argumentative loose ends” (to adopt

the respondent mother’s counsel’s phrase), including questions raised by the court, parties will be entitled to raise those. Also, I

recognise that the modular or bit by bit approach, while attractive, militates against an “holistic” approach, so if there is anything

that could be termed “holistic” and goes to everything, such can be raised. There is also outstanding information, such as what

happened in CFA v RD, which information, as pointed out by mother’s counsel, goes to the CFA’s view of best interest. There is also

an attachment assessment report to be received.

41. I adjourn the balance of the enquiry to 25th October 2017, being the next available date for myself and the parties.

Brendan Toale

Court 46

06.10.17