Brexit a concern as court discusses case of child in UK under an Irish care order – 2019vol1#16

See follow up Vol 1 of 2020: Care order review of child in care in UK heard remotely in Dublin District Court

See also Vol 2 of 2018: Court considers case of Irish child in care in UK under Irish care order

A child in care in the UK under an Irish care order was adamant he did not wish to return to Ireland, but his legal status in the UK was unclear, the District Court heard. His UK foster placement had broken down, he was in a residential unit there, but that was also considered not suitable.

The court had previously heard that the issue in the case was that the Irish court had jurisdiction over the care order. However, the boy’s foster placement broke down and for a time he was living in a caravan. The child was not placed under Article 56 (placement of a child in another member state) of the Brussels II Regulation and the Irish social work team had not been able to access a suitable placement.

The teenager was adamant that the UK was now his home as he had been living there since he was a young boy and did not want to return to Ireland. He had been with his foster parents for about three years after residing initially in a children’s home in the UK, which catered specifically for children with attachment disorders. However, his placement broke down and a new placement was needed. The child was moved to a residential placement, but this was not suitable, and another placement was needed.

According to the CFA solicitor, the teenager was getting himself into trouble in the current unit and the change of unit would help him “to keep outside of trouble”. “I had the sense he was missing,” said the judge. The CFA solicitor said that the boy had lived in a caravan for a period of time. The timing had been unfortunate as the required consent from the UK authorities, pursuant to Article 56, was not received on time.

When the case returned to court the solicitor for the child’s father said he had had no instructions from his client.

The solicitor for the CFA told the court that the case was related to a UK social work department and that it was an ongoing issue. The judge said that the matter had been before her three months earlier. “Is there an article 56 request?” asked the judge. The court heard that the child had moved to the UK for a therapeutic purpose and subsequently moved to a foster placement. An article 56 (placement of a child in another member state) specific to that foster placement, until the child would turn 18, was obtained at that point.

Following the foster placement breakdown and the move to a residential unit, a new article 56 had been requested. However, it had become obsolete as the residential unit was unable to meet the teenager’s needs and no alternative placement had been identified. According to the CFA solicitor, the change of unit would help the teenager “to keep outside of trouble”. The timing had been unfortunate as the required consent from the UK authorities, pursuant to Article 56, was not received before the placement in the residential unit broke down.

The judge accepted that this was a complicated case but noted that there had been very little progress and the process was somehow ‘inchoate’. The court heard that the boy, who under no circumstances wanted to return to Ireland, had previously told the social worker that he would kill himself if he was returned. However, the teenager had some family access in Ireland over the Christmas period, which was a significant development. For the first time moving back to Ireland was “a real option”.

The GAL was very concerned about the child’s legal status considering that, with the change of residential unit, a new Article 56 application would have to be made. A decision would need to be made as whether the child would stay in UK or would return to Ireland. The GAL and the social worker were due to travel to the UK to further assess the situation.

When the judge asked what the after-care status in UK would be, the CFA solicitor said that an after-care plan would have to be put in place if necessary. Acknowledging that the original purpose of the minor moving to the UK was to receive appropriate therapeutic treatment, the judge asked whether further assessments had been done since then in the context of after-care. The GAL solicitor said that there had been medical input in the context of long-term planning. However, the teenager was very insistent that he would not return to Ireland.

The judge acknowledged that the child was a teenager and that there was an investment in relationships in the UK. Noting that the child’s wishes had to be taken into account, the judge said they were not necessarily persuasive. Given that the child had got into difficulty with the criminal process in the UK, the judge asked: “What are the chances of realising his wishes?”

The CFA solicitor said that further information would be available the following week after the scheduled visit to the UK. The judge said that it was the function of the GAL to bring to the court the child’s wishes and that had been done. “Now there is a need for legal information and a choice of jurisdiction otherwise the child would be given a false sense of comfort,” said the judge.

In the context of Brexit, the court heard that although it would be possible to find another placement in UK, it was uncertain whether the Brussels II A regulations would still apply. The judge pointed out that the responsibility of the Irish court would continue until the child turned 18.

Adjourning the matter, the judge said: “I wonder whether [the child] is aware of the complications. These are the concerns of the court regarding his best interests.”

Impact of Brexit

When the matter returned to the District court a week later, the solicitor for the father said that his client had re-engaged with the process to a certain level. The judge said that it was a relief given that there had been very little involvement for a while.

The court heard that the CFA and the GAL shared concerns about the child. The solicitor for the CFA suggested a four-week adjournment in order to allow a discussion amongst parties with the purpose of ascertaining a realistic way forward. “I was expecting that there would be some update from the parties,” said the judge, adding that it was necessary to focus on the child’s legal status while staying in the UK. “What is the position with regard to article 56? Is it going to be achievable?” asked the judge.

Counsel for the GAL said that social services had identified a new residential unit in UK, which would become available to move to soon. The court heard that a different article 56 application (placement of a child in another member state) should be made in respect of the new identified unit.

In the meantime the CFA was considering a parallel plan. The teenager had visited family in Ireland in a couple of occasions and the access went relatively well. Counsel for the GAL said that there was no “talking about coming back in any immediate sense”. Rather the plan was to bring the youngster over on a regular basis so that Ireland was no longer perceived as a foreign country.

The judge said: “If article 56 falls at the end of March [after the Brexit date], is there a potential for a new procedure under the Children Convention [Hague Convention]? I think we need an Irish order for the child. I need the legal aspects of this very clearly outlined to the court.”

The judge emphasised that the Irish legal position needed to be explored, not just for the child who was the subject of the current proceedings, but for many children who would be in similar circumstances. The judge was aware that Judge Kelly in the High Court was exploring the matter from the wardship perspective, albeit in the context of a special care order.

The court heard that legal opinion on the subject had not yet been produced. The judge asked whether the CFA had consulted with the Central Authority in respect of child protection proceedings. The judge said that at that point it was necessary to seek the information, not just to be curious, but because the process should be fully explored and set out.

Adjourning the case for two weeks, the judge directed the CFA to explore the matter with the Central Authority and expert practitioners. The judge granted liberty to return in the event of something happening to the child or any issues arising regarding the child’s welfare. “Make your own enquiries, particularly to the Central Authority,” said the judge.