Court considers case of Irish child in care in UK under Irish care order

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

See follow up Vol 1 of 2019: Brexit a concern as court discusses case of child in UK under an Irish care order

An Irish District Court heard that an Irish teenager living in the UK under an Irish full care order had gone through a foster care placement breakdown and was being placed short term in a caravan (he then moved to a single occupancy unit).

The issue in the case was that the Irish court had jurisdiction over the care order and difficulties were arising as the Irish social work department and guardian ad litem worked in conjunction with the local authorities in the UK to organise his next placement. The child was currently not placed under Article 56 (placement of a child in another member state) of the Brussels II Regulation and the Irish social work team could not 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.

The teenager had a diagnosis of a severe reactive attachment disorder and ADHD from Great Ormond Street Hospital. That medical report had been sought in 2014 in the context of the full care order hearing in Ireland. The child’s mother was currently accessing homeless services in Ireland and his father was in prison. Both parents would be served notice of the next review application of the case due to its re-entry because of the placement breakdown.

Placement breakdown
The court heard that the placement breakdown in the UK had come as a surprise because the teenager had been living with his foster carers for a few years but that his conduct disorders had contributed to the outcome. The catalyst for the breakdown had been an incident in the local area when the teenager had thrown a spanner through a window of a block of flats.

That incident had resulted in the teenager’s arrest as well as some men coming to the foster parent’s house with threatening and abusive behaviour. The teenager was then removed to a residential placement for his own safety but had not accepted there was a risk to him and returned home. His foster carers had been very concerned for his safety as well as their own and he was brought back to the residential unit.

However, the police were called to the unit due to the teenager’s abusive behaviour towards a staff member in the unit and acts of vandalism. This behaviour was seen as very out of character but he did not see the seriousness of it, the guardian ad litem (GAL) told the court. An Irish court could make an order to return him to Ireland, said the GAL, his placement in the residential unit had broken down and he was now residing in the caravan, which was not appropriate.

The foster parents had called an end to the placement and as the teenager had formed a very close attachment to them, he was now in crisis.

“We need to know what the police assessment of the risk is,” commented the judge. The care order was from Ireland and was being dealt with from Ireland but that needed urgent consideration. “The question in all these cases that has to be asked is, what happens when things go wrong, how is the enforcement done and all the underlying paperwork has to be done, it needs urgent sensitive review.”

A few months later
When the case returned a few months later the teenager was in a single occupancy unit and his concerning behaviour was continuing. He had got possession of a blade and slashed the back of a car seat while a staff member was driving.

Counsel for the CFA told the court that the social worker was due to travel over to see the teenager again early next week.

The judge said there was a possibility of transfer of the case to the UK under Article 15 (the transfer of jurisdiction from one country to another) or otherwise and that remained likely to be an important consideration if the situation did not change for the teenager. “He was habitually resident in Ireland some time ago but he says he’s not coming back, the question of habitual residence may well have to be revisited.”

He was currently in a placement not supported by Article 56 consent (placement of a child in another member state) and “the idea of trying to manage him from here in this crisis situation is not satisfactory.” A direction on legal status was needed for the next hearing in two weeks and in the meantime the GAL was due to visit the teenager.

When the case returned the court heard that the teenager remained in the single occupancy unit and there were some difficulties in relation to it. His social worker in Ireland (he did not have one in the UK) was trying to identify a suitable placement for him in the UK. The court heard that the local authorities where he was residing were not cooperating with the Irish social work department therefore counsel for the CFA was due to write to the legal department of that UK local authority setting out why the social work department in Ireland was seeking assistance. “Clearly they would have the knowledge of suitable placements,” said the CFA solicitor.

There was concern that the single occupancy placement in the UK could end and although the teenager was adamant he wanted to remain in the UK he had agreed to return to Ireland to visit a relative. He had family and siblings in Ireland so the CFA were now looking at whether it was in his best interests to return.

An Article 15 application (the transfer of jurisdiction from one country to another) was not something the CFA were currently considering and they were unsure if he would meet the criteria for habitual residency in the UK as well as the other criteria.

The social worker told the court that the teenager had been in his single occupancy unit for just over a month and he struggled with peers. During the last month his behaviour had become more challenging, particularly around sexualised behaviour towards female staff (who were of his age-group). He had also been quite aggressive towards staff members.

Residential unit unable to meet boy’s needs
The unit therefore no longer felt they were in a position to meet his needs. The social worker needed assistance in navigating the UK system and as she was due to visit the teenager the following week to seek the child’s views and she would also ideally meet with someone from the local authority to seek assistance. The social worker was not currently making any progress with the local services.

He had previously told her that if he was returned to Ireland he would kill himself and the social worker felt that he was nervous of anything to do with Ireland. He was not currently attending school.

“If he were in this jurisdiction displaying that level of behaviour do you think you would consider special care, has it reached that level?” asked the judge.

“No, he did have blades on two occasions and used them to rip the car seats but there were no assaults,” replied the social worker.

“Let’s hope it doesn’t reach that level,” remarked the judge, “he had blades on two occasions…the social work is being done from here, if he were to reach the criteria for special care…?”

The social worker replied that the application would have to be made in the UK because the Irish social work department would not be able to physically get him back to Ireland to the secure care bed.

The GAL told the court that the teenager was going through a “catastrophic sense of loss” because of the one incident during the summer that had led to the permanent breakdown of his foster placement. That placement had now taken on a new foster child and he was currently processing that loss as well as the loss of his friends and his school.

The GAL, who had gone to see the teenager the day before in the UK wanted the teenager to visit his relative in Ireland to see there were some benefits for him there, his father was relatively stable, this relative was stable, she had a job, it was just his mother that was not stable. This relative had been his original foster carer and the GAL felt it might help him to reconnect with his original foster family.

For now the priorities were to identify a placement to meet the needs of his educational requirements and to identify therapy. The teenager knew he was at risk of coming home if a placement could not be found in the UK. The GAL told the court that the local director of children’s services could approve a placement in a secure unit if necessary, so if things became extremely difficult there would be participation from the local authorities.

Habitual residence
After hearing all the evidence the judge commented that the question was regarding habitual residence, could the local authorities in the UK put the teenager into secure care there if he did not have habitual residence? Did the case fit into Article 15? The Irish court had a responsibility to supervise but could not do this because the child was in the UK.

Complicating the matter further, the judge noted that the courts in the UK do not have a function post care order there, the child was in the UK, the social worker was in Ireland, “it is no surprise that I asked the question would it be better if it were social worked in the UK.”

Counsel for the GAL told the court that Article 15 allowed for a specific part of the case to be transferred, not the whole of the case. “If we leave aside Article 15, you then have a situation where an Irish court has to make orders and then we seek to have them enforced in England.”

The judge said it was possible to make Section 47 orders that were enforceable in the UK. The possibilities of orders being made might prompt the local authority into taking action. However, he remarked that there was a need for it to be dealt with on the ground in the UK under their authority because as long as the care order was under Irish jurisdiction it was less likely the local authority would prioritise services for the teenager.

“If it’s not functioning, we need to find a way that it functions better, if in the middle of it all we can find a way to get him to come back all the better,” said the judge.

“We still have a fundamental problem that there’s no Article 56 (placement of a child in another member state) for where he is, there is a systemic problem here.” The objective was to find a placement for the teenager under Article 56 and get it funded. The case was due to return in two weeks.

Article 56 of the Brussels II Regulation
Placement of a child in another Member State [Article 56 BR II]

Article 56 Placement of a child in another Member State
– 1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
– 2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
– 3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
– 4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

The seised court of a Member State, having jurisdiction under Section 2 of Chapter II over matters of parental responsibility, may think it’s in the best interest of the child to place it in institutional care or with a foster family. Usually this is done in an institution or with a foster family domiciled in that same State. However, sometimes it’s necessary to place the child in an institution or with a foster family in another Member State, for instance because the child is present there or has more connections with that State. In such event the court which has the intention to place the child in another Member State, must consult firstly the Central Authorities of that other Member State. Only when the requested authorities of that other Member State, where the child is to be placed, have consented therein, the court may give a judgment for the placement of the child in institutional care or with a foster family in that other Member State.

http://www.europeancivillaw.com/content/brusselstwo077aa.htm

Article 15, Brussels II Regulation, 2003.
Article 15 Transfer to a court better placed to hear the case (i)
– 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 court’s 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.