District Court decides infant brought to Ireland from UK is UK resident – 2018vol1#11

In an application for an extension of an interim care order, the judge in a District Court in a rural town considered the habitual residence of an infant who had been brought to Ireland from the UK by her parents. The matter was also before the High Court. The parents were both in court and represented by their solicitor and counsel.

The judge said he had read the file and he had the cumulative evidence in mind, but he should hear oral evidence. He also said the matter was for mention in the High Court in a further two weeks as the parents wanted to contest the application by a UK local authority social services department (UKSSD) for a High Court enforcement order to return the infant to the care of social services in the UK. The CFA solicitor said that the UKSSD was committed to the enforcement of the UK care order with the Irish High Court.

The CFA social workers and the UK social workers were in regular contact and a UK social worker was not able to attend the District Court as she could not get a flight for the court date.

The parent’s counsel said that the High Court matter was a separate issue and she submitted the 2007 Supreme Court of AS v CS [2009]IESC 77A upon which she relied in making her case that the parents and baby were habitually resident in Ireland.

There was a discussion in court about the awaited outcome of a European Court of Justice (ECJ) decision on the recent reference under EU law by the Irish Court of Appeal of an Irish High Court decision to endorse a UK enforcement order on an ex-parte basis. In this case, Hampshire County Council – v- C. E. and Ors[2018] IECA 154, three children who had been in the care of the local authority were returned to the UK by the Irish High Court without the parents being heard on the matter under EU regulation 2201/2003 or what is commonly referred to as the Brussels regulation II bis.

The outcome of the ECJ case would have implications for the parent’s right to be heard by the High Court here and whether the baby would be returned to care in the UK, the court heard. The ECJ decision was expected shortly and the parents expected they would know in two weeks whether their High Court case was going ahead as it was in for mention on that date.

Meanwhile, the District Court had jurisdiction to determine habitual residence in the context of the extension of a section 17 interim care order. The judge said the outcome of the High Court case might take the issue out of his hands.

The court heard on a previous occasion that the baby had been received into care in the UK at the end of January 2018, when she was placed with her paternal grandmother. UK social services had concerns that the infant had been the subject of fabricated induced illness by her parents and a UK court had heard medical evidence to that effect. The parents had removed the baby from the care of her grandmother at the end of April and travelled to Ireland with her in breach of the UK court care order.

In April the parents presented themselves with their infant daughter at a local Garda Station where the child was placed with a foster family under section 12 of the Child Care Act and she had remained in their care since then on a CFA emergency care order and subsequently on an interim care order.

The social worker told the court that the infant, an eight month old baby girl, had been in the care of the CFA since April with the same foster family. She was making age appropriate progress, was alert and happy, had rolled over, broken two teeth, was in a good routine and adequately cared for. The baby had been referred to ENT in relation to being tongue tied and was waiting for an appointment. She had been seen by a public health nurse (PHN) for a developmental review the week previously and her measurements were within the normal range. There was a review of her overextended posture and her arms were found to be a bit stiff.

The foster family had a pre-booked holiday and would not be able to care for the baby during the last week of July, but there was another foster carer available during that week.  The baby had weekly contact with her biological parents who lived two counties away.

When asked by counsel for the mother about telephone contact with the baby’s parents, the social worker said she generally found them pleasant and co-operative.

The social worker said the baby had enjoyed weekly contact with her parents and the maternal grandmother. All the adults interacted and the baby was not distressed and was happy to see the foster carers. She said that the previous week’s visit was a positive visit.

The judge invited legal submissions from the CFA solicitor and counsel for the parents on the issue of jurisdiction. Case law was opened to the court by counsel for the parents and the CFA solicitor. Much of the discussion in court centred around the legal test in the Irish Supreme court in AS v. CS [2009] IESC 77A  and the ECJ  case of Mercredi v. ChaffeCJEU 22.12.2010 C-497/10  for habitual residence involving ”the settled intention” of parents to relocate and whether this settled intention could be established after the wrongful removal of a child.

The CFA solicitor submitted that the habitual residence of the baby was the UK and asked the court to consider all the circumstances of why the parents took up residence and the effect of the move in breach of a court order. She submitted that this could affect their “settled intention” if acted upon in breach of a court order.

She referred to the parents wrongfully removing the child from the custody of a UK social services department (UKSSD) by way of a circuitous route to Ireland as a breach of article 10 of the Brussels regulation II bis regulation. She asked the court to take into account that the couple were appealing the UKSSD’s enforcement in the High Court and at the same time saying the UK court order didn’t exist.

The judge said there were direct parallels with cases under the Brussels regulation IIbissuch as Mercredi v Chaffe where the period after the offending behaviour of removing the child was not taken into account in determining a “settled intention”.

The judge said it had not been contradicted so far that there were care proceedings in the UK and the child was unlawfully removed. He said this was backed up by An Garda Síochána here and he was asked to decide that the infant had habitual residence on the basis that her parents had a one year lease, PPS numbers and employment.

The judge said: “I find it very difficult, having heard that your clients knowing [the] order was there, [and the baby was] only in the care of [her] parents for 24 hours. I can’t see from that evidence an infant could establish habitual residence in this country.”

The parents’ counsel said there was no evidence of a care order. In reply, the judge said she was conflating two things the totality of what came before him and what An Garda Síochána told him which was open until it was controverted. He said he was basing his decision on the totality of what he had heard, “the parties travelled with the infant and presented themselves, saying [they were] on the run”.

The parents’ counsel said that the Garda evidence was not admissible. She said, “saying they were on the run didn’t equate with a breach of a court order.” The judge said that he accepted the Garda evidence and he could take into account the circumstances of their arrival in Ireland, which was not to set up a house but that they were on the run.

The judge said there was evidence from the father that he did not call his UK job until he left, and he invited counsel for the parents’ to suggest any other way to consider this. The parents’ counsel said it was the parents’ absolute intention to leave the UK.

The question was, the parents’ counsel said, whether the child had lost habitual residence when the parents moved for a settled purpose and intention. She submitted that the parents satisfied the tests set down in the European case of Mecredi v Chaffe and AS v CSconcerning a very young child where their presence was not temporary or intermediate and there had been some integration into the social environment.

The parents’ counsel said in the Supreme Court case of AS v CShabitual residence required the showing of intention for “for some degree of period” and that settled purpose for an appreciable time was not to be searched by a microscope. She said her clients were looking for a fresh start, left one country and settled here. She said her clients came “full square” within the definition of “shared intentions” and the loss of habitual residence in a day or a short period of time as referred to in AS v CS.

She said the parents were not habitually resident in England and it was not disputed that they deliberately left England and had no intention of going back. The baby was not habitually resident in England and the Supreme Court had held that habitual residence was lost if there was no intention of going back.

She said it would be fundamentally unfair not to find habitual residence here and she was using the most relevant case law. She said the High Court application was not before the District Court which had jurisdiction and was seized and the child was habitually resident here.

The CFA was only in temporary loco parentisunlike section 18, she said, and “the parents’ residence determined the child’s habitual residence”. She said given the evidence of a person who had set up home, there was no suggestion of a temporary stay and on the law, the parents met the circumstances.

She said the court had suggested the circumstances in which the parents left the UK militated against them, and in looking backwards, what they had done had borne out their intention.

The relevant point, she said, was their intention to settle and their firm intention to leave England permanently. She disagreed with the CFA solicitor that the move was chaotic. She said the State was a temporary custodian, and the child had constitutional and European Convention rights. She did not accept the UK had jurisdiction.

She did not accept the baby was unlawfully removed and there had been no finding in the High Court of that. She said the infant’s immediate family was her world. The child’s habitual residence depended on the parents’ duration of stay.

The parents’ counsel submitted to the court that it was “a matter of fact” that the parents engaged in a joint enterprise to leave the UK permanently and took tangible steps, left and settled into this jurisdiction. She said there was evidence of habitual residence and “the parents had all the indices of people intending to settle”, such as a one year lease on a house, a full time job, a mother looking for work, engaged locally in clubs, and in the process of opening bank accounts. She said the court had jurisdiction here for any order under Article 17 and not Article 20 of the Brussels regulation II bis.

The judge invited both parties to submit any other evidence which would assist.

Counsel for the parents said she wanted to call the parents but did not want a cross examination by the CFA solicitor where the parents could self-incriminate themselves as regards the breach of a court order. In reply, the judge said she could object to a question which would self-incriminate, but valid questions could be asked about habitual residence.  The mother was called by her counsel to give evidence to the court.

Counsel for the mother asked her if she could inform the court of her arrangements as it had been suggested she did not have a “settled intention”. The mother said: “I disagree, I don’t have any intention of going back to the UK. [The father] has a job and is going to an interview for a better job. I’m going for a care position with a care home for dementia. My mother is here but going home and my mother and step-father are looking at early retirement in Ireland. We discussed [with them that] they would prefer to move to Ireland and keep close contact.”

The mother said she and the father of the baby wanted to move permanently to Ireland. They had a contract for electricity and wi-fi and were registered with a local GP.  She had joined some local craft groups and a church choir and sang at some weddings. She had her own car. She was using her mother’s Irish bank account and they were setting up their own account. The father had a PPS number and the mother was due to get hers. They had rented a house. The mother said they were happy in the area.

The CFA solicitor asked the mother to detail her time in Ireland since her arrival and asked why she and the father had chosen their arrival location and subsequent locations in which they had not been previously or with which they had no connections. The mother said her sister had lived in the first location, where they spent two nights in a B and B, they did not have any friends or relatives there.

The judge asked the mother whether the McKenzie friend (a non-legal person who assisted the parents with the proceedings) had put her in touch with her solicitor and how did they end up living two counties away?

The mother said she saw on an ad on Facebook about services for families in care proceedings and an advisory group for parents falsely accused by social workers.

The CFA solicitor said that what was seeing was “a chaotic situation” with two nights in one county in the south and ten nights in the west of Ireland.

Judge: “Are you telling me [you made] a major move to Ireland without sourcing accommodation?”

The mother said she originally sourced accommodation to be near the court. The

judge observed that making a permanent move to Ireland without a birth certificate for the baby and to stay with a friend of a friend for three weeks “strikes me as very unusual”.

The CFA solicitor put it to the mother she was  not intending to make a permanent move but walked into a Garda Station saying, “we are on the run from the UK”. The mother said they presented themselves voluntarily.

When asked by the CFA solicitor about her accommodation, the mother told the court that she and the father of their baby had taken a twelve-month lease on a house which friends had found for them and they intended to extend the lease. The father had secured employment in an IT company and was hoping to get a better paid job. The mother was hoping to get a job working in a local nursing home. The solicitor for the CFA pointed out she would need Garda vetting for working with vulnerable adults.

The judge said firstly he had decided the habitual residence of the infant and he found the case law which was urged on him helpful.

He had heard evidence from the mother of a one year lease which she was looking to extend, where she disagreed that she did not want to stay, and of the parent’s intention to settle. They were registered with a GP and a vet, joined local groups, had no bank account yet but they were using her mother’s account.

The couple crossed by car to Ireland and stayed in a B and B for two nights in the south of the country and then went further west as it, “looked like a beautiful place” and spent a further two nights and he had to ask why they then moved two further counties away to friends of friends.

He said one of the tests of habitual residence is voluntary relocation. It was put to the mother that the move was based on a desperate situation, and the mother failed to attend court on a given date.

The judge observed: “Why present yourself to a Garda station knowing the consequences and surrender the circumstances of the case [and the baby is] taken into the care of the local authorities?” The child was not in the parents’ care and custody since that date. They had carefully supervised contact weekly.

The judge referred to the legal principles involved in a settled purpose which required a shared intention and having a sufficient degree of continuity, he said, [this] “hardly described the parents”. He quoted Justice Macken in the AS v. CS  and  Mercredi v. Chaffe in this context  and said this must mean “some integration of the child in the social environment and reasons for the family’s move.” The national court must take this into account. The judge said the point in time the court decides on habitual residence is before the alleged wrongful act.

He said those two decisions were the correct test and he was applying the law to the facts as he understood it to be. The judge said the rental of property was not a box ticking exercise. He said: “You did not  have to travel too far through Google for an organisation to advise you on how to give the impression of settled intention, not indicative of the desire of a couple to be here.”

He said the criteria of AS v CSwere stressed on him and the fact of joint enterprise by the parents’ counsel. These were hard to reconcile with the accepted facts. The judge said it was urged on him by the CFA solicitor that the chaotic nature of the move should be taken into account.

A move could be voluntary for settled purposes as part of a regular life to a sufficient degree, the judge said. However, he found “as a matter of fact, nowhere [the case] meets the criteria that the infant is habitually resident here,” and the baby continued to be habitually resident in the UK.  He said on the basis of the facts outlined he did not accept the parents lost their habitual residence in the UK.

In the circumstances, the judge granted a section 17 extension of six weeks until the mention of the parents’ High Court case contesting of the UK application for an enforcement order.

The parent’s counsel asked the judge for further explanation of his decision and in reply the judge said he was not reopening the case as he had listened to the arguments. On the application of the parent’s counsel, he made an order granting the DAR (court) recording of the case to be released to the parent’s counsel and solicitor.