High Court asks English courts to take over case – 2013vol2#1

The High Court has asked the High Court of England and Wales to assume jurisdiction in a case involving a child born in Ireland to English parents, who ended up in care in Ireland.

The HSE sought a declaration that the infant had a particular connection with the jurisdiction of England and Wales under EU law concerning jurisdiction and the recognition and enforcement of judgments in family matters. It also sought declarations that it was in the best interests of the child that any further proceedings relating to his care be heard in the English courts, that these courts were best placed to hear them, and requesting the High Court of England and Wales to assume jurisdiction.

The social worker in the case told the court in an affidavit that the child’s mother arrived in Ireland from the UK with her partner, the child’s father, when she was near the end of her pregnancy. They took up residence in a rural town. The mother had two children with other partners, both of whom were in care in the UK. The local authority where she had lived in England informed the social work department in the Irish town that they suspected the couple had fled to Ireland to avoid child care proceedings being taken in the UK. A decision had been taken by the UK authorities to make a care order application on the birth of the expected child.

The basis on which they were making this application was that they had concluded that neither parent was “willing or properly able to make the changes in their lifestyle to ensure the safety of the new baby when it is born.” Their concerns included that the mother had not accepted any of the concerns relating to her older children; that the parents had a history of abusing alcohol and drugs; that the father had a history of criminal activity including an assault on the mother; that the mother had herself had a difficult and violent upbringing; that there was significant risk of physical harm to the baby from further domestic violence between the mother and her current and future partners and that the baby was at risk of emotional harm due to on-going domestic violence.

They UK authorities cited a number of incidents as evidence of their concerns, including the fact that both the mother’s previous partners had assaulted her; one of them had been convicted as a result and the other was detained under the Mental Health Act as he had attempted to take his own life. The mother’s own mental health deteriorated following the death of her father from a drug overdose. She had been exposed to a high level of domestic violence herself as a child. While with her previous partners she had frequently sought refuge and police protection, but returned to her abusive relationships. Her two older children were taken into care when she ended up severely ill after a large amount of alcohol and cocaine, resulting in an ambulance being called.

During the care proceedings for these two children a psychiatrist diagnosed the mother with a personality disorder characterised by “peripatetic relationships, substance misuse, self-harm behaviours, impulsivity and aggression … [and] marked co-dependency with unsuitable partners.” He considered her capacity to change as limited at best and said she struggled to prioritise her children’s needs over her own need for a relationship, albeit with potentially violent men.

The baby in this case was born in an Irish regional hospital and the HSE obtained an Emergency Care Order for him. This was followed by an Interim Care Order. The mother, who was represented by the Legal Aid board, consented to the order, as did the father, who was present in court but not represented. This order was extended on a number of occasions. A number of access meetings took place between the baby and his parents, who indicated they wished to remain in Ireland. However, within a month they had left the country leaving the child in care in Ireland.

Two months later the mother contacted the social work department to say she had separated from the father and had had a nervous breakdown. She later told the social work department that the father had been sentenced to five months in prison for assaulting her and there was a five year restraining order in place.

Meanwhile the local authority in England stated there was no legal basis for it to accept responsibility for the case, and that there was nothing it could do for the child.

The HSE reviewed the case and concluded it was in the child’s best interests to return to the UK, as, apart from being born in Ireland and having one distant and elderly relative here, he had no immediate or extended family here and no real connection with Ireland. There were extended family members in the UK who could be assessed as potential carers and he had two half siblings there. In addition, all the assessments of his family had been carried out in England.

The social worker concluded that the defendants in the case had come to Ireland specifically to evade the jurisdiction of care proceedings in the UK, and that the courts in England and Wales were best placed to hear any proceedings relating to his future.

In the High Court Mr Justice Birmingham agreed, and requested that the High Court of England and Wales take jurisdiction of the matter.