District Court stays child care application to England and Wales under Article 15 of Brussels IIa Regulation.

[2017] IEDC 22

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 4)

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

(No 2) [2017] IEDC 11 (Decision #2), 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. 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.

3. For the reasons set out in my previous decision CFA v G and ors (No 3) [6th October 2017] (Decision #3) I have concluded that

F has a particular connection with the United Kingdom, and that the courts of the United Kingdom, (more properly the courts of

England and Wales and any reference to the courts of the United Kingdom should be read accordingly), would be better placed to

hear this case.

4. This is my fourth decision in respect of Regulation matters in this case. By a circuitous, some may say overcomplicated or even

torturous route, I have arrived at the point of deciding whether on the motion of the court, and subject to the final sentence of

Article 15.2, to invite the parties to introduce a request to the courts of England and Wales to accept transfer of and assume

jurisdiction over this case. What now remains for consideration in the context of Article 15.1 is whether it is in the best interests of F

to request the courts of England and Wales to assume jurisdiction of the case (acknowledging that "the case" may indeed be a

different case with some different parties, as referred to in CFA v JD (Case C – 428/15), and as referred to by Baroness Hale in N (

Children) [2016] UKSC quoted at paragraph 15 of the "opinion" mentioned below).

5. This case was listed for further hearing on 25th October 2017 for hearing of this remaining matter. On that date, the Child and

Family Agency applied for an adjournment, to await receipt of an attachment assessment that had been ordered in the Article 15

proceedings previously brought in the High Court, and an affidavit of laws in respect of the issue previously discussed and “parked” in

decision #3, of whether, if the case were transferred to the courts of England and Wales pursuant to a request under Article 15, this

would involve the child moving immediately or simultaneously to the United Kingdom. Mother consented to, and indeed supported, the

adjournment and the guardian ad litem adopted a neutral position. I adjourned the hearing to 29th November 2017, when the matter

proceeded to hearing.

7. Prior to the hearing on 29th November 2017 a document titled “Affidavit of Laws” was filed. This is not in fact an affidavit, rather it

appears to be an opinion / advice of Michael Gration. None of the parties or the guardian ad litem took any issue with this not being

an affidavit, and all relied on its contents to some extent. In the interests of progressing the matter, I am satisfied on this occasion

to take the same approach, I will refer to it as "the opinion".

8. On 29th November 2017, the Child and Family Agency, mother and the guardian ad litem were all present and represented. As has

been and has remained the position throughout these proceedings, neither of the gentlemen who are putative fathers of F were

present or represented.

9. The parties and guardian ad litem relied on oral and written submissions previously made, and also made further oral submissions.

10. On 29th November 2017 I heard further evidence from the following:-

i. A.M., F's current allocated social worker, who filed an affidavit sworn 23rd November 2017 and furnished a report

dated 29th November 2017

ii. C, guardian ad litem to F, who furnished a report dated 27th November 2017

iii. J.N., Clinical Psychologist, who furnished a report dated 27th November 2017

iv. Mother, whose evidence was limited to furnishing details of her siblings and their whereabouts, and of F’s maternal

first cousins and their whereabouts.

11. I am satisfied on the basis of the evidence, and with the assistance of submissions that

i. There are no proceedings in existence in the courts of England and Wales in respect of parental responsibility, child

protection or otherwise, in respect of F.

ii. That no competent authority / local authority in England and Wales has stated that it will or that it intends to institute

any proceedings in respect of F.

iii. That no competent authority / local authority in England and Wales has an “open” case in respect of F, in either the

social work sense or the legal sense of that term.

iv. That a specified local authority [L.A.] is reported to have indicated in a conversation between social workers that it

would consider bringing proceedings if “directed by a court” to do so.

v. That F’s mother is an important person in F’s life and that mother and F have pleasant interactive contact and

connection with each other.

vi. That F does not have any measurable attachment with mother.

vii. That F’s primary attachment is with his current foster father, described by JN as “an engaging secure attachment”

viii. That F has been placed with F’s foster carers since shortly after birth, that the placement with the foster carers is

and always has been short term.

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

ends and that on leaving the care of his current foster carers, F will experience very significant and damaging distress,

graphicly detailed in evidence by JN and set out in JN’s report particularly at paragraph 3, and by the guardian ad litem

in evidence and in the guardian ad litem report particularly at paragraph 5.12.2

x. That it is in F’s best interest, given that it is inevitable that F will move from the current foster carers and will

experience very significant and damaging distress, that F experience only one move of placement. More than one move

of placement will compound the significant and damaging distress that will result from leaving the present foster carers.

More than one move of placement will be detrimental to F’s best interests and welfare.

xi. Mother has 5 siblings. She has had no contact with one sibling for over 10 years. She has a sibling living in Dublin with

whom she previously had contact, but with whom she has recently had a disagreement and with whom she doesn’t

speak. She has another sibling who resides in the United Kingdom. She has another sibling with whom she had no contact

for c2.5 years, until that sibling contacted her on Facebook two weeks ago and is said now to be residing in Dublin –

mother has not had face to face contact. Her final sibling resides in the United Kingdom. At least 3 of her siblings have

children (first cousins of F), some of whom reside in Ireland.

xii. F does not have contact with any maternal or paternal extended family at present.

12. I don’t propose to set out again the facts set out in decisions #1, #2 and #3, but I continue to rely on them. All that I have said

in decisions #1, #2 and #3 still stands, all 4 decisions should be read together.

13. I remind myself of some of the findings previously made in decisions #1. #2 and #3, namely

• 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. (#1. para 43)

•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, … F was placed with foster carers immediately on reception into care in July 2015, with

whom… F has remained ..., to date. (#1. para 51)

•"… [F's] current placement is a short term placement and [F] will have to move at some stage in the future". (#1,

para 54)

•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. (#1, para 67)

•…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… F is entirely in this jurisdiction. The evidence in relation to mother is in both jurisdictions. (#3,

para 25)

•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.

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 [to this court] what case mother presented in

the United Kingdom, but it would appear … 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. (#3 paras 29 and 30)

•The evidence in relation to R and what happened to R is crucial in decision making in respect of F.(#3, para 31)

•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.

(#3, para 33)

•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”. (#3, para

39)

14. There is agreement between the parties and the guardian ad litem that the test to be applied by this court in considering whether

it is in the best interests of F to request the courts of England and Wales to accept jurisdiction in this case pursuant to Article 15 is

set out in CFA v JD (Case C – 428/15), paragraphs 58 -61 of that decision which say as follows:-

58. Third and last, the requirement that the transfer must be in the best interests of the child implies that the court

having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged

transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child

concerned.

59 To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the

familial, social and emotional attachments of the child concerned in the case or on that child’s material situation.

60 In that context, the court having jurisdiction may also decide, on the basis of Article 15(1) of Regulation No

2201/2003, to request the transfer, not of the whole case, but only of a specific part of that case, if the particular

circumstances justify it. That option may, in particular, be envisaged when the relation of proximity with another

Member State does not directly concern the child as such, but one of the holders of parental responsibility, on the

ground stated in Article 15(3)(d) of Regulation No 2201/2003.

61 For the reasons stated above, the answer to the third, fourth and sixth questions is that Article 15(1) of Regulation

No 2201/2003 must be interpreted as meaning that:

in order to determine that a court of another Member State with which the child has a particular connection is

better placed, the court having jurisdiction in a Member State must be satisfied that the transfer of the case to

that other court is such as to provide genuine and specific added value to the examination of that case, taking

into account, inter alia, the rules of procedure applicable in that other Member State;

in order to determine that such a transfer is in the best interests of the child, the court having jurisdiction in a

Member State must be satisfied, in particular, that that transfer is not liable to be detrimental to the situation of

the child.

Paragraph 61 is repeated at #2 of the ECJ’s ruling set out at the conclusion of the decision.

15. I asked the parties for assistance with the meaning of "not liable to be detrimental to the situation of the child". I now take it to

mean "not likely to adversely affect the best interests of the child". For reasons that I hope will be clear from this decision, I do not

find on this occasion that I need to assign a standard of proof such as "real possibility" or "balance of probabilities" etc. to the term

"likely"

16. It is the position of the Child and Family Agency and the guardian ad litem that the courts of England and Wales are better placed

to hear the case (as indeed has already be found by this court). It was submitted by the Child and Family Agency and the guardian

ad litem that it is in the best interests of a subject child, and specifically in F’s best interests, that the courts better placed hear the

case. I agree with this submission. I hold that that it is in F's best interests that the court better placed should hear the case.

Although I regard it as axiomatic that a child's best interests are served by the child's case being heard by the court better placed, I

do not regard this as determinative, as all aspects of a child's best interests must be considered before deciding the issue.

17. The only other aspect of the best interests of F raised by the Child and Family Agency and the guardian ad litem in the context of

this aspect of the Article 15 was in respect of any interim placement moves. It is the position of both the Child and Family Agency

and the guardian ad litem that it would not be in the best interests of F to undergo any interim placement move(s), and in effect that

the inevitable move from his current carers should be F’s only and final placement move in their view such final placement move

should be under a care order and to long term foster carers. The position of both the Child and Family Agency and the guardian ad

litem is that if transfer of the case to the courts of England and Wales necessitates any interim placement move(s) for F, then

transfer of the case would be detrimental to F’s best interests.

18. Thus the position of the Child and Family Agency and the guardian ad litem is that the best interests of F would be best served

by the case being heard by the court best placed, namely the courts of England and Wales, while the child continues to be placed

with the current carers in Ireland, pending the outcome of that hearing. Once the case has been determined, F should move only

once, to F’s long term carer.

19. It is also the position of both the Child and Family Agency and the guardian ad litem that the detriment to F's best interests that

would be brought about by F undergoing any interim placement move(s) would outweigh the benefit to his best interests that would

be brought about by the case being heard by the court better placed. Therefore if both elements which they identify as being in F's

best interests cannot be accommodated, the Child and Family Agency and guardian ad litem require that F should forego the benefit

of the case being heard by the court better placed in order to avoid F undergoing any interim placement move(s).

20. Mother’s position remains that it is in the best interest of F that the case be heard in this jurisdiction and that no request should

be made for transfer of the case.

21. Mother agrees with the Child and Family Agency and the guardian ad litem that it would not be in the best interests of F to

undergo any interim placement move(s), in effect that the inevitable move from his current carers should be F’s only and F’s final

placement move in her view there should be no care order and such a final move should be to her care. Mother agrees with the

position of both the Child and Family Agency and the guardian ad litem that if transfer of the case to the courts of England and Wales

necessitates any interim placement move(s) for F, then transfer of the case would be detrimental to F’s best interests.

22. Mother submits that CFA v JD (Case C – 428/15) should be read as expressly or at least as strongly implying that the ECJ

envisages that transfer of a case requires transfer of the subject child. In this submission she relies in particular on paragraph 59 and

to a lesser extent on paragraph 60, already quoted above. She submits that in referring to the effect of a transfer "on familial, social

and emotional attachments…and…on the child’s material situation", [para 59], the ECJ makes it clear that it contemplated transfer of

the case involving transfer of the child how else, mother asks, would such matters arise for consideration? To a lesser extent,

paragraph 60 envisages that a transfer of the child might not be required if part only of the case is transferred, and by implication

indicates that such a transfer follows if the whole case is transferred.

23. Mother submits that before requesting a transfer pursuant to Article 15, the court must be guaranteed that F will not undergo any

interim placement move(s), that no such guarantee exists, and that absent such guarantee, the court must find that a transfer is “

liable to be detrimental to the situation of the child” [specifically there is a possibility that transfer will involve interim placement

move(s)], and therefore should not be requested.

24. I note again the submission of the respondent mother previously referenced at paragraph 12 of decision #3 and repeated at this

hearing, that transferring the case requires moving the child more or less immediately, and certainly prior to any substantive orders

being made, to the other jurisdiction, and this inevitably arises from the decision of Cobb J in In Re LM [2013] EWHC 646 Fam.

25. There is a deal of discussion in the opinion of the fact that there is no local authority in England and Wales identified and/or

designated as having responsibility for F, or F’s case, again in either the social work or legal sense of that term, and of the

complexities that might arise because of this lack if there is a request to transfer the case. eg, in the conclusion of the opinion, at

paragraph 65 …

e) The primary difficulty in making progress following any transfer of the Irish

proceedings to England and Wales may therefore be identifying which authority is responsible for making that application

and for pursuing the proceedings thereafter;

f) On my analysis, no English or Welsh local authority currently has any statutory duty towards F, and no such duty will

arise unless and until F is ordinarily resident or otherwise present within the area of a local authority. Without any duty

to assess his circumstances, it may be unlikely that any authority will be in a position to make (or agreeable to making)

an application to the courts of this jurisdiction. It is notable that in both Re LM and Re HJ, the designated authority

accepted responsibility for the proceedings thereafter. I do not know whether [LA] would accept that responsibility in

this case;

g) Accordingly, unless and until a local authority agrees to accept responsibility for the transferred proceedings, there is

likely to be a legal argument following transfer as to whether or not the proceedings should continue in this [United

Kingdom] jurisdiction, and if so which authority should be responsible for those proceedings. If there is such an

argument, it is likely to make the process of transfer complicated, and may delay the transfer being accepted;

and further at paragraph 68…

Without any agreement between the Child and Family Agency and LA, any transfer may be legally and procedurally

complicated, and the legal issues may take some time to resolve.

26. I note the caveat in the opinion, at paragraph 33, that " it may be questionable whether, in light of the decision in Re N

(children) [2016] UKSC 15, and CFA v JD (Case C – 428/15) the approach [taken by the court in Re LM] is now correct"

27. I also note paragraph 37 of the opinion in respect of In Re LM, in particular that

“…It may be possible to develop the approach that was taken in those two cases (and cases since, which have followed

the same approach) so as to permit of a transfer of jurisdiction without the physical transfer of the child taking place

unless and until the courts have, within the transferred proceedings, determined that the child should be transferred.

28. In decision #3 I referred to Child and Family Agency -v- RD [2014] IESC 47 and especially what was said at paragraph 15 of

that decision, (albeit that that is referenced to Article 17), viz

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

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

have jurisdiction on the grounds of habitual residence. However such order is not required by the Regulation. [Emphasis added].

29. Mother submits that CFA v RD is distinguishable from the present case, precisely because CFA v RD involved Article 17. She

submits that in an Article 17 case, jurisdiction always lay with the other Member State, and it is a matter for the courts of that

Member State, exercising their jurisdiction, to decide what is in the best interests of the subject child, including whether to seek the

transfer of the child to that Member State.

30. A somewhat similar issue arose in Child and Family Agency -v- CJ & anor [2016] IESC 51. In that case, the Supreme Court

[O’Donnell J] at paragraph 24, said

I unreservedly agree with the Court of Appeal that Article 20 did not permit the order made in this case directing the

return of the child to the care of Dundee Social Services at the very least without any order from a Scottish court

directing such return and in respect of which any order of the Irish Court would be ancillary provisional and therefore

protective. I also agree for the reasons addressed in the Court of Appeal that nothing in my judgment in CFA v RD

[2014] I.E.S.C. 47 could, or should, be taken as suggesting, still less establishing, that an Irish Court has jurisdiction

under Article 20 to make a free standing order for the return of a child to Scotland when that return has not been

sought by a body having custody, and ordered by a court having jurisdiction as to substance of claims in respect of

parental responsibility.

31. The key issue in the above cases, it seems to me, is as to which court can make an order to transfer a child from the jurisdiction

of one member state to another. The answer, it seems to me, in each case, is the court having jurisdiction over the substance of the

case at the time the order for transfer of the child is made. If a request for transfer of this case is made of the courts of England and

Wales, and if that request is accepted, then the courts of England and Wales will have assumed jurisdiction. Then, and only then, will

the courts of England and Wales be able to consider an order to transfer the child.

32. Considering all of the above, I am satisfied that none of the following, i.e.

•the Regulation

•specifically Article 15 of the Regulation

•CFA v JD (Case C – 428/15) (which on my reading consistently refers to transfer of a case only and does not refer to

transfer of a child's case requiring transfer of the subject child)

•specifically paragraph 59 and 60 of CFA v JD (Case C – 428/15) (which on my reading consistently with the remainder

of that decision refers to transfer of a case only and does not refer to transfer of a child's case requiring transfer of the

subject child)

•a request under Article 15 to the courts of England and Wales to assume jurisdiction in the case

•the acceptance of such a request

in themselves require the transfer of F to the United Kingdom immediately, or at any time before the determination of such

proceedings as might be brought in the courts of England and Wales.

With specific reference to mother's submission on paragraph 59 and 60 of CFA v JD (Case C – 428/15), even taking that submission

at its height, at most the paragraphs referred to provide that the matters referenced should be considered if they arise (particularly

noting the word "might"), rather than amounting to a declaration (by implication) that such matters always arise because a transfer of

the subject child is always required.

33. I accept that if the courts of England and Wales were to accept a request pursuant to Article 15 to assume jurisdiction, then,

adopting the phrase from the decision of the Supreme court in CFA v CJ, "jurisdiction as to substance of claims in respect of parental

responsibility" would pass to the courts of England and Wales, who could then order the transfer or removal of F from the current

carers to an interim placement(s).

34. It is unlikely in the extreme that any court in England and Wales would consider the case, either the request for transfer or any

substantive consideration, without having access to and considering (together with all other relevant evidence) the reports and

opinions of the Child and Family Agency / Child and Family Agency social worker(s), the guardian ad litem and JN psychologist

regarding the issue of interim placement move(s). Such reports must form part of the paperwork accompanying any request to

transfer the case pursuant to Article 15.

35. If an Article 15 request is made, there is a “double lock” in respect of F’s best interests. The court receiving the application for

transfer, in accordance with Article 15.5 must consider whether assuming jurisdiction in response to the request to do so would be in

the best interests of F – clearly it would be open to the court receiving the request to refuse it if that court were satisfied that the

transfer would not be in F’s best interests, including on the precise ground that the acceptance of the transfer and any subsequent

institution or maintaining of proceedings would under the laws of England and Wales require immediate transfer of F to the United

Kingdom.

36. If the transfer request were accepted, and the case considered substantively, then once again the court substantively

considering the case and in particular whether any interim placement move(s) should occur would have the assistance of the reports

and opinions of the Child and Family Agency / Child and Family Agency social workers, the guardian ad litem and JN as to F’s best

interests.

37. I hold that it is most unlikely that in the context of that "double lock" referred to above, that the courts of England and Wales will

make any order in respect of any interim placement move(s) that will be " liable to be detrimental to the situation of the child", in the

sense of. "likely to adversely affect the best interests of the child". I hold that "most unlikely" falls well short of proof to a standard

of "real possibility" much less "balance of probabilities" etc.

38. In CFA v JD (Case C – 428/15).the ECJ stated the first question at paragraph

28:-By its first question, the referring court seeks, in essence, to ascertain whether Article 15 of Regulation No

2201/2003 must be interpreted as meaning that it is applicable where a child protection application, such as that at

issue in the main proceedings, has been brought under public law by the competent authority of a Member State, in a

situation where it is a necessary consequence of a court of another Member State assuming jurisdiction that an

authority of that other Member State thereafter bring proceedings that are separate from those brought in the first

Member State, pursuant to its own national law and having regard to possibly different factual circumstances.

and then said at paragraph 36 –

since the application of a national rule of procedure whereby it is a necessary consequence of a court of another

Member State assuming jurisdiction that an authority of that Member State thereafter commence proceedings that are

separate from those brought in the first Member State can only be subsequent to a decision having been made by the

court normally having jurisdiction to request the transfer of the case to a court of another Member State, pursuant to

Article 15(1) of Regulation No 2201/2003, and to a decision having been made by that other court to assume jurisdiction

on the basis of Article 15(5) of the regulation, that rule cannot be regarded as impeding the adoption of those decisions.

and then ruled

Article 15 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, repealing Regulation (EC)

No 1347/2000, must be interpreted as meaning that it is applicable where a child protection application brought under

public law by the competent authority of a Member State concerns the adoption of measures relating to parental

responsibility, such as the application at issue in the main proceedings, where it is a necessary consequence of a court

of another Member State assuming jurisdiction that an authority of that other Member State thereafter commence

proceedings that are separate from those brought in the first Member State, pursuant to its own domestic law and

possibly relating to different factual circumstances.

39. I am satisfied that the above confirms that the neither the existence of proceedings in the United Kingdom, nor the identification

of a competent authority that is committed to issuing proceedings, are preconditions to requesting a transfer of the case to the

Courts of England and Wales.

40 Mother raised one other aspect of F’s best interests, namely contact with family. I refer to findings I have made regarding F’s

family. A number of F’s maternal aunts, uncles and cousins appear to reside in this state, although neither G nor F appear to have

much contact with them. It is clear that F’s father (whichever gentleman that is, as yet unproven to this court despite requests)

resides in the United Kingdom, as do some of F’s maternal family including F’s grandparents, brother [R, in care] aunts/uncles and

cousins. Such relationships as F might have or develop with extended family will be influenced to some extent by which member state

he resides in, whether under a care order or with mother. Whether the case is transferred to the courts of England and Wales or is

substantively dealt with here, the court that ultimately deals with it will be competent, in the event that a care order is made, to

address the placement of F in either member state, in accordance with his best interests, and at that stage to consider issues of

contact with family/extended family. Such issues in my view have no relevance to the issue in hand, i.e whether to make a request

under Article 15.

41. If the Regulation issues including the Article 15 issues had been addressed in 2015, the Article 15 issues would have been

somewhat more straightforward. There would still have been the "problem" that F had never been in the United Kingdom, that there

were no proceedings in existence in England and Wales in respect of parental responsibility, child protection or otherwise, in respect

of F, that no competent authority / local authority in England and Wales has stated that it would or that it intended to institute any

proceedings in respect of F, and that no competent authority / local authority in England and Wales had an “open” case in respect of

F, in either the social work sense or the legal sense of that term. However the problem of the damage that might be caused by the

possibility of any interim placement move(s) would either not have existed at all, or would not have existed to the same degree. In

evidence JN expressed the opinion that if a child is to be moved from a placement that it is best to do so prior to the child attaining 6

months. I do not regard such a move as having no consequences, but it appears that it would not have the serious consequences

that would flow from any interim placement move(s) in this case.

42. By the time the court began to address the Regulation issues, in 2016, I am satisfied that the attachment with the current foster

carers had formed, and the problem of the damage that might be caused by the possibility of any interim placement move(s) already

existed to a level approaching the same degree as at present.

43. Ultimately, the problem presented by this case is that the by virtue of mother moving from the United Kingdom, jurisdiction over

F's case is not currently with the court best placed, that court being best placed essentially by virtue of the events alleged in

respect of R, which led to R being admitted to care in the United Kingdom, and which events underpin the application for a care order

in respect of F, having all occurred in the United Kingdom. The regulation provides a potential solution to that problem - transfer of

the case pursuant to Article 15, provided the conditions for Article 15 transfer are met. The position of both the Child and Family

Agency and the guardian ad litem, supported by the evidence given by both the allocated social worker and the guardian ad litem of

their respective professional opinions in this regard, is that it would be in the best interests of F that the case (in effect an

application for a care order) be heard by the court best placed to hear it. I hold that the best interests of F would be best served by

the case being heard by the court best placed, namely the courts of England and Wales, while the child continues to be placed with

the current carers in Ireland, pending the outcome of that hearing. The question remains - can both elements identified as being in F's

best interests be accommodated in the context of a request under Article 15?

44. I have set out above as far as I can my reasons for holding that the Regulation in itself, and as interpreted in the case law, does

not, in short, direct or determine that transfer of the case requires transfer of the child to the member state accepting the transfer

request.

45. I cannot decide whether the laws of England and Wales determine that if an Article 15 request is accepted, that transfer of the

case requires transfer of the child to the United Kingdom on accepting the transfer request. The opinion effectively says maybe,

maybe not. This issue, it seems to me, can only be resolved by the courts of England and Wales, and presumably could only be

resolved in the context of their receiving a request under Article 15.

46. As previously referred to, mother submits that if this court does not know the answer to the question (i.e. can both elements

identified as being in F's best interests be accommodated in the context of a request under Article 15?), then the Article 15 request

should not be made for fear that the answer to the question may be no, but that making the request under Article 15 may involve

loss by this court of substantive jurisdiction over the case (including jurisdiction over whether any interim placement move(s) should

occur). I regard this as an excessively conservative approach, which if applied will exclude F from the possibility that both elements of

F's identified best interests can be accommodated. I am satisfied that the very essence of Article 15 is to promote the best interests

of children in providing the possibility in appropriate circumstances for cases to be heard by the court better placed. I hold that the

"double lock" that I have identified earlier in this decision is sufficient guarantee of the best interests of F being properly and

appropriately considered and weighed in the context of an Article 15 request, and in this context I confirm that I hold that it is most

unlikely that the courts of England and Wales will make any order in respect of any interim placement move(s) (or of course

otherwise) that will be ..." liable to be detrimental to the situation of the child", in the sense of .. "likely to adversely affect the best

interests of the child".

47. I therefore propose to make an order in the following terms:-

The court, on its own motion, considering that a court of England and Wales being a court of another Member State with

which F has a particular connection, would be better placed to hear the within case, , and that this is in the best

interests of the child:

hereby

stays the application for a care order under s18 herein and invites the parties to introduce a request before the court of

England and Wales in accordance with paragraph 4 of Article 15 of the Regulation.

48. For the avoidance of any doubt, I direct that if the request proceeds before the courts of England and Wales, that (subject to

the rules of the courts of England and Wales) that the documents submitted in that application include the Child and Family Agency

social worker's report dates ......., the guardian ad litem report dated ........, and JN's report dated.

49. Turning to Article 15.2, the last sentence provides that "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". I request the parties to address the meaning of this

provision - does it mean that one of the parties must accept the request for transfer of the case, which would be a prerequisite to

the transfer request proceeding to the courts of England and Wales? Or does it mean that in the event that the court of England and

Wales accepts the request to assume jurisdiction, one of the parties must then accept the transfer.

Having heard from the parties, I am taking it that the former is the appropriate interpretation.

Brendan Toale.

6th December 2017