District Court confirms child acquired Irish habitual residence, dismissing father's jurisdiction claim.

[2017] IEDC 9

AN CHUIRT DUICHE THE DISTRICT COURT

TUSLA CHILD AND FAMILY AGENCY

APPLICANT

AND

AS

FIRST NAMED RESPONDENT

AND

MS

SECOND NAMED RESPONDENT

IN THE MATTER OF, A CHILD [the Child [JURISDITION HABITUAL RESIDENCE]

CHILD CARE ACT 1991 – SECTION 17 (2) Application to Extend INTERIM CARE ORDER

[Note: This is an edited version of the Court’s reasons for its decision on jurisdiction and any changes from to the original is

intended to be as to form and not as to substance, and is deemed necessary to reduce the possibility of identification of the

parents or the child.]

The child came to the attention of social services in another Member State when the mother sought advice from a charity there

about protection from alleged domestic abuse. The charity notified social services about the allegation and the risk to the child

by reason of domestic violence. Prior to this the child was not known to social services. Social Services supported the mother.

In September 2014 the father was convicted of harassing the mother. The Courts of the Member State also granted an

unlimited Restraining Order against the father to protect the mother and he was restrained from contacting or attempting to

contact the mother directly or indirectly or be within 100 meters of her home or work. The Order allowed for limited contact

through a solicitor in order to arrange contact (with the child) or for arranging the divorce proceedings.

The mother is an Irish National and the father is a National of the other Member State. The child was born in that Member

State, and was habitually resident there.

No order for Residence or Contact was sought by the father or mother. The only Orders from the Courts of the other Member

State related to the Conviction and the Restraining Orders. As part of the Conviction the father undertook a 30 week course of

Probation and course on “building better relationships”. The father felt that this Report would assist him in securing contact with

the child.

The mother unilaterally relocated to Ireland in December 2014. The father only learned of the relocation some five months later

but took no legal action as he was satisfied that the child had settled in school in Ireland at that time.

The Child came to the attention of the Social Work department in Ireland following concerns raised by the school in March 2015.

One concern related to the fact that the mother was late when collecting the child from school on a regular basis. The school

was also concerned that the mother did not appear to take information on board; apart from those concerns it was noted that

the child was appropriately attired for school and was also provided with an appropriate lunch.

The social service in the other Member State notified the social workers in Ireland that they were closing their file as the

mother had relocated and was being treated for mental ill health, and that the child was in the care of his maternal uncle.

Supports were put in place by the Applicant Agency at that time for the mother and child, including a family support

programme.

A private family arrangement was supported by the Agency in August 2016 and the mother subsequently signed a voluntary

agreement consenting to the child coming into the voluntary care of the Agency under s. 4 of the Child Care Act, 1991 in

August 2016

The Agency did not notify the father that the child was in voluntary care of the Agency by agreement of the mother. When he

found this to be the case he commenced a formal complaint process against the Agency as they failed to notify him of the fact

for a period of seven weeks.

The father signed a Voluntary Care Agreement for one month in October 2016. Interim Care proceedings were then commenced

in November 2016 when the father withdrew his consent for the child to remain in voluntary care.

PROVISIONAL PROTECTIVE MEASURES UNDER ARTICLE 20

The child remained in kinship foster care until the father refused to further extend the voluntary care agreement. The Agency

applied for an Interim Care Order on the basis that the child’s health, development and welfare would be avoidably impaired or

neglected were he returned to the care of either parent at this time. The Court made an Interim Care Order in November 2016,

having regard to Article 20 of EC Regulation 2201/2003 as a provisional protective measure until such time as the Court

determined whether it had jurisdiction to make a substantive order in this case, or whether the Courts of the other Member

State had jurisdiction to make a substantive order regarding the child, in accordance with the jurisdictional rules contained in

the Regulation.

REASONS FOR DELAY IN DETERMINING JURISDICTIONAL ISSUE

The father experienced delay in securing legal representation in Ireland through Civil Legal Aid, pursuant to the relevant

Regulation in that regard. As he was residing and working in the other Member State he found it difficult to engage with his Irish

Solicitors and wished them to make submissions to the Court on the question of ‘habitual residence’. He also wished to seek an

Order for custody of the child and wished to relocate the Child to the other Member State to reside with him there with his new

partner. He has since secured a Decree of Divorce and wished to provide care for the child for these reasons

The Agency, the mother’s legal team and the Guardian’s legal team also sought permission to furnish individual written

submissions on the question of the Court’s jurisdiction. Accordingly the jurisdictional issue was not formally determined by the

Court until April 2017 some five months after the Court was seized of the case. It is also noteworthy that the child has been

residing with the mother in Ireland since December 2014 and with his maternal extended family since August 2016, through a

voluntary care arrangement. The father also consented to this voluntary care arrangement when he was notified of same.

HABITUAL RESIDENCE DETERMINATION

1. Article 8 of the Regulation EC 2201/2003 provides as follows:

“General jurisdiction

1. 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. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”

Through their respective legal advisors each of the parents accept that the provisions of Article 8 would have applied at

the date of the removal of the child from his former habitual residence in December 2014, as the child was habitually

resident in that Member State at the date of his removal. The Courts of that Member State had not determined the rights

of custody of the parents nor had the Courts been asked to do so by either parent.

The child’s habitual residence from birth was in the Member State where he was born and the mother’s relocation from that

Member State to Ireland in December 2014 was neither consensual nor authorised by Order of the Courts of his habitual

residence. The Court is mindful of the authority provided in the case of DE v. EB [2015] IECA 104, that a unilateral decision

by one parent to move a child to another country without the consent of the other is a factor which militates against a finding

that there had been a change of habitual residence. The father has stated that his child was abducted by his mother, but

concedes that when he found this to be the case he took no active steps to commence child abduction proceedings, or

residence or contact proceedings because he was satisfied that the child was settled in school at that time.

2. The Court must also consider Articles 9, 10 and 12 in the circumstances of this case. I am satisfied on the evidence adduced

that the father chose not to take action when he found out about the wrongful removal by the mother and accepted himself

that the child was settled in Ireland. While he had the opportunity of commencing child abduction proceedings up to April 2016,

he did not do so. When the child was admitted to voluntary care of the Agency with the consent of the mother in August 2016,

he was not notified, as the other parent with parenting rights, for a further seven week period. However, when he was notified

he subsequently consented to a voluntary care arrangement in October for a one month period.

3. Article 10 of Council Regulation (EC) No 2201/2003, (commonly know as Brussels II bis Regulation) outlines the position where

a child is abducted. While this Court is not concerned with child abduction, as such matters are always to be determined by the

High Court, Article 10 outlines the jurisdictional rules in cases of wrongful removal or retention of a child, and provides that the

courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall

retain their jurisdiction until the child has acquired a habitual residence in another Member State. It also sets out the exceptions

to that rule ;

“Jurisdiction in cases of child abduction

In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually

resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a

habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;

or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or

other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child

is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the

child, no request for return has been lodged before the competent authorities of the Member State where the child has

been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been

lodged within the time limit set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the

wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member

State where the child was habitually resident immediately before the wrongful removal or retention”

4. The failure of the father to request the return of the child in the context of the facts outlined in paragraph 18 must be

considered in the context of Article 10 (a) and (b). The Court must therefore consider the child’s place of habitual residence on

25 November 2016, the day when the Agency issued an Interim Care Application and the court was seized.

5. I am satisfied on the evidence adduced that by reason of the facts of this case that the child is now settled in Ireland and

attends school regularly since December 2014. He has many friends in school now and is fully integrated into the social fabric of

his community and school, and he actively enjoys sports and has good friends. His views were directly ascertained and while he

wishes to have some contact with his father he has expressed the view that he does not wish to return to his old home or to

the full time care of his father;

Had the father commenced proceedings for the return of the child following the mother’s move to Ireland with the child in

December 2014, the appropriate Court might have acceded to a request to return the child to the Courts of the Member State

of his habitual residence at that date, so that those Courts (being the habitual residence of the child at that time) could make

the substantive orders regarding parental responsibility of the child.

However at the time that this court was seized in November 2016 the child had acquired a habitual residence in Ireland and

resided in this jurisdiction with his mother for over one year after his removal by his mother in December 2014. The father

concedes that he was aware of her relocation some five months after the child’s unlawful removal but took no action. The

Supreme Court in the case of Child and Family Agency v CJ & Anor [2016] IESC 51 noted that the Courts must be very

sensitive to the particular facts of the case.

In this case neither the Courts of the Member State of the child’s original habitual residence, nor the Courts of Ireland, were

seized by the father following the removal of the child by the mother when he became aware of the child’s location in Ireland. In

fact the father conceded that he formed the view that the child was settled and so did not commence any such proceedings.

Neither parent sought orders concerning the issue of parental responsibility from the Courts in the child’s former habitual

residence, nor in the Irish Courts, until the Agency commenced child protection proceedings. In the circumstances and facts of

this case I am accordingly satisfied that at the date that this Court was seized that the child had acquired habitual residence in

Ireland, and had lost his former habitual residence in the other Member State.

The CJEU case of Mercredi v Chaffe Case C-497/10 PPU has pointed out that the concept of “habitual residence”, for the

purposes of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003, must be interpreted as meaning

that such residence corresponds to the place which reflects some degree of integration by the child in a social and family

environment. I am satisfied that the child was well settled and fully integrated into his social and family environment when the

Court was seized.

The Court is grateful to the legal advisors for their helpful oral and written submissions and elucidation of the case law of the

Irish Courts and the Court of Justice of the European Union.

6. The father has now commenced proceedings before this Court seeking an Order for custody and for permission to remove the

child from Ireland to reside with him and his partner in the child’s former habitual residence. He has indicated his intention to

oppose the Care Order proceedings listed for hearing before the Court in April 2017 on the basis that he is a parent who is fit

and able to provide full time care for his child. The Care Order proceedings are listed for a three day hearing, and the custody

proceedings and ancillary orders should stand adjourned to that date also.

Judge Rosemary Horgan