High Court accepts transfer of infant to Ireland – 2015vol1#7

In the High Court an Article 15 application from another jurisdiction under Brussels II bis, to request the transfer of care proceedings involving an infant from that jurisdiction to Ireland, was accepted by the judge. The Child and Family Agency (CFA) was supporting the application and told the court that prompt District Court proceedings with a view to taking the child into their care would follow the child’s return.

Senior counsel representing the solicitors in the other jurisdiction told the court that it was a novel application, “as generally speaking the Article 15 application goes in the other direction”. It was a request by the courts of the other jurisdiction for the Irish court to accept jurisdiction of the proceedings.

He said the child in question had been born late last year to Irish parents in the other jurisdiction. They had been told shortly before the due date that the CFA would be instituting proceedings to take the baby into care at birth. When they left Ireland an international alert was affected. During the birth at the hospital in the other jurisdiction, the parents attempted to conceal their identity by telling staff they were in-laws. However the staff became suspicious as the father was present for the duration of the labour and the couple were affectionate towards one another afterwards.

After staff contacted the authorities it was established that they were in fact both the baby’s parents and an Emergency Care Order was sought and obtained. The court [in the other jurisdiction] had now declined jurisdiction and made a request under Article 15 that the Irish courts accept jurisdiction of the proceedings.

When the judge posed the question of the right to travel between states, the senior counsel representing the authorities in the other jurisdiction said that the right to travel was not an absolute right but it was a right in order to establish other rights such as the right to take up employment. In this situation the only purpose for travel was to avoid child care proceedings so he did not think the right to travel was engaged – the parents had not been exercising a European Treaty right. He said that no rights were absolute and there had to be restrictions.

Senior counsel then told the court the parents had indicated that they accepted the principal of the child returning and were not challenging it. The father was about to return and the mother would return on the same day as the child in order to continue access in the interim.

In order for another court to accept jurisdiction it must be satisfied on particular matters, continued the senior counsel. These included which court was best placed to hear the proceedings and whether it was in the best interests of the child for the case to be transferred, and also, did the child have a connection with the intended jurisdiction for transfer. These matters had not been set out by the courts of the other jurisdiction (normally they would be) but they must have been satisfied as to the tests, said the senior counsel.

While proceedings had been instituted in the other jurisdiction, the authorities there had had limited dealings with the parents. The parents were Irish and had had dealings with the CFA in Ireland and the historical information was with the CFA.

The mother’s other two children were subject to full Care Orders in Ireland. There had been a history of domestic violence in three other relationships regarding the mother and there had been a lack of capacity to provide for the well-being of her children. She also had a history of substance misuse and a refusal to work with the social work department.

In relation to this baby, the father has shown a lack of insight regarding the social work department’s concerns and involvement. A pre-birth psychological assessment had shown the mother to have a borderline level of cognitive functioning. An ability to control anger had been raised as she had assaulted a minor and held a knife to his throat for not giving her a cigarette. She had taken non-prescribed benzodiazepines during the pregnancy and had attended hospital while drunk. She could not provide structure or stability in the physical or emotional sense.

The father was not the father of the other two children, he himself had spent a lifetime in care, he had been abused and had a history of alcoholism, said the senior counsel. He also had convictions including public disorder and drunk driving. Both parents had a limited appropriate family network or support. All matters were sourced in Ireland. A relative of the father had already been interviewed in relation to relative foster care.

Senior counsel for the CFA told the court that Brussels II bis was directly effective, under the Constitution that provision permeated into Irish Law. He said recital 12 of the Regulation made it clear that the grounds of jurisdiction were shaped in the light of the best interests of the child, particularly in relation to proximity. He said the inherent jurisdiction is a label for the power of the court to vindicate constitutional rights and that the court was vindicating the rights of a citizen under the Constitution.

The judge accepted the request for the transfer of jurisdiction. The child would be placed in the care of the CFA on an interim basis until proposed proceedings in the District Court.