High Court rules infant must return to parents’ jurisdiction for care proceedings – 2015vol1#6

The High Court has ruled that a baby whose parents moved to Ireland from another jurisdiction in order to avoid care proceedings must return to that jurisdiction in order to decide the care status of the child.

The case concerned a baby who was three months old at the time of the High Court proceedings. He had been in care since his birth days after his parents arrived in Ireland under a series of Interim Care Orders granted in the District Court, pending the hearing of an Article 15 application in the High Court for the transfer of the proceedings. The baby had an older brother who had been taken into care in the other jurisdiction and adopted.

Both parents had diagnoses of personality disorders, and the mother had two children from another relationship who were not living with her. She admitted coming to Ireland to evade social services because the parents had been told the baby would be taken into care at birth.

When the case came before the High Court lawyers for the parents asked the court to adjourn the proceedings so that they could prepare the case, arguing that the child should stay in this jurisdiction.

Application for adjournment

In submissions, the barrister for the mother sought to adjourn the case on the basis that the child had never lived in the other jurisdiction. The barrister contended that the court was being asked to send an Irish citizen to another jurisdiction against the wishes of its parents. The barrister also said the parents wished the child to be represented by a guardian ad litem (GAL). She cited the TK case where a GAL was appointed for a child under 12 months old.

The barrister for the father told the court that the father had only recently received legal aid and therefore the matter had been quite rushed and she would like extra time to prepare the case. A parenting capacity assessment report and psychiatric assessments had been directed in the District Court where Interim Care Orders had been made and while the mother’s was completed the father’s was yet to commence. The only other reports available were historic and related to a large extent to another child. She asked the judge to put the matter back for four weeks.

Judge: “The problem I have with that is where people come here to avoid social services in [the other jurisdiction], there is an onus on this court to deal with the matter as soon as possible.”

There was no psychiatric illness found on the part of the mother in England, said the judge.
Senior counsel for the CFA told the court that in the McMenamin judgement, paragraph 19, the attenuated consideration was what was in the best interests of the child. The substantive issue here was which jurisdiction was best placed to hear the case. “The issue is where are the best placed courts, within that the secondary issue is what is the best interests of the child, it is not a welfare analysis.”

He also told the court that he had been in the McMenamin case and represented the GAL. “We are talking about a three month old child and with the greatest of respect what could a GAL possibly bring to the court, this is a legal issue,” he said.

Furthermore the District Court judge had made an express request to be informed if a psychiatric assessment would delay everything and he was told it would not. The Article 15 application concerned a point of law, “reports are secondary to the issue the court has to decide. The reports don’t go to the issue it has to resolve,” said the senior counsel.

The barrister for the father argued that the social workers were relying on historic social work reports from the other jurisdiction. “For equity the defendants should equally have an entitlement to put updated reports before the court so the court has updated information for its decision.”

The barrister for the mother argued that the CFA must satisfy the court that the other court was clearly the most appropriate forum and that the balance of fairness would require that the reports, which were nearly completed, be made available to this forum.

“That’s missing the point,” said senior counsel for the CFA. “It’s not a case of us relying on historic reports, this is a net issue of law and new reports don’t change the issue because they are irrelevant.” The father had yet to meet the psychiatrist and it could take up to two months before those reports were ready, he told the court.

The judge said there was very little reason for allow the matter to develop into a welfare theory and refused the applications to put the matter back for four weeks. “The child is too young for a guardian to be appointed,” she also said.

The case

Senior counsel for the CFA told the court that the case concerned a three month old baby [Child B]. “The circumstances giving rise to his birth are peculiar, parties are agreeing to the context of their arrival, there is no contention that they came to Ireland other than to avoid the social services team responsible for the family in [the other jurisdiction]. It was initially contended that an agreement had been entered into by [mother] and [the] social work services. She contests it but either way she agrees she was told [the baby] would be taken into care at birth and she would be part of a 26 week assessment thereafter.”

The court heard that 10 days before the birth of the baby the parents travelled to Ireland and made no contact with any medical staff. However an alert was raised in the neighbouring jurisdiction and An Garda Síochána were called. Two days after her due date, the mother was found at home by herself in a flat, she had not yet contacted any medical services. The gardai brought her to the hospital and the following day she gave birth. The baby was taken into care that day and an Emergency Care Order was applied for and granted. Since then the baby had been in foster care and Article 15 proceedings had commenced.

Three questions were identified as being the issues which must be resolved by the court before it could go on to make an order pursuant to Article 15.

Senior counsel said there was no difficulty proving the first question – did the child have a particular connection with the jurisdiction nominated? He did. Being entitled to Irish citizenship did not mean the child was not a national of the other jurisdiction. He met the criteria for Article 15.c.

Second question – was it a better place for the case to be heard? There were on-going concerns with the social services in the other jurisdiction, there were two children from the other relationship and more recently another child of the same marriage, all with assessments completed. The father and mother were aware [Child B] would be taken into care and there had been an active engagement of team services who were intimately involved. The family had made a decision to evade that process and they did not deny it. They were lying low in Ireland hoping to evade authorities. The mother says this is not the case, “but how can it be seen in any other way, two days after her due date she hadn’t spoken to a doctor,” said senior counsel for the CFA.

The courts in the other jurisdiction were the better place to hear the case, it was where the witnesses were and there was the potential for other matters to arise, they were the appropriate courts.

He said a secondary issue [third question] was whether it was in the best interests of Child B for the case to be dealt with in the other jurisdiction, but again the law was clear. This was not a detailed substantive issue of B’s welfare issues, it was settled law. In paragraph 20 in the McMenamin judgement, relying on Re I and Re T, the experts and authorities dealing with this family were in the other jurisdiction and any other relevant information was also there.

“The simple reality is this is a family who has decided they are going to evade social services in [the other jurisdiction],” said senior counsel for the CFA. The child was a national of the other jurisdiction and it was in his best interests for the case to be sent there. Those courts were best placed to deal with the case.

The barrister for the mother said that this case was starkly different to the McMenamin case where there had been proceedings in the other jurisdiction for child cruelty, wilful neglect and possession of a firearm. The care order proceedings for Child A in this family had run to two and a half days, there was not the intricate involvement of the McMenamin case he was referring to.

While the psychiatric report which had subsequently come to hand did identify risk, it made recommendations and suggested the child be returned on the basis of a strictly monitored Supervision Order. While it was not a report without reservation in relation to both defendants, no further psychological intervention was needed, said the barrister.

The mother’s barrister told the court that there had been huge co-operation on behalf of both parties with Irish social services. The mother had linked in with the GP and psychiatric services and she had attended a local mother’s group and accessed welfare services. If Child B was to remain with her “she will be assessed for Jobseeker’s Benefit.”

“There is an overlap between the best interests of the child and a better placed court, senior counsel has not met the onus on showing the [courts of the other jurisdiction] are the better placed courts, his parents are here, they are engaged [with social services] here, they have established a base here, they are not going back to the UK regardless of the outcome of the proceedings. There is at least the possibility that [B] will be deprived of his parents by the proceedings,” said the mother’s barrister. She contended therefore that their involvement in the proceedings was in his best interests.

The barrister for the father told the court that she was adopting her colleague’s submissions. She said the father had first become involved with social services in the other jurisdiction when he had asked them about regulating his employment situation and then Child A’s welfare had become an issue.

She said there had only been three visits from social services where they had been living and prior to that, in their previous location where they had been living for over a year, there had been limited involvement. Social services in the second area had relied on information from the other areas regarding previous decisions.

The barrister for the father told the judge that habitual residence should determine where the case is heard, the child had been born in Ireland and was therefore an Irish citizen. “This child is a habitual resident here.”

Judge: “That’s very much in doubt on my understanding of the law, just because they came here to avoid social services doesn’t mean he’s a habitual resident.”

Senior counsel: “It doesn’t arise because he’s a national [of the other jurisdiction].”

Father’s barrister: “[Child B] cannot be habitually resident anywhere else in circumstances where he’s never resided anywhere else.”

Judge: “Under public policy grounds we can’t have a situation where when a social worker [from the other jurisdiction] suggests something that parties don’t like and [the town they arrived in] becomes the chosen venue.”

The barrister for the mother pointed out that there was no request from the other jurisdiction that the case be transferred.

The barrister for the father said the practice guide to the regulation on habitual residence depended upon the facts of the individual case.

Judge: “What if the person is coming to this country to avoid the legal authorities in the other country so they cannot perform their statutory function?”

The barrister for the father told the court that under Article 15 there was no positive, mandatory obligation to transfer the child and that the court had to look at whether it was in the best interests of the child. The local authority in the other jurisdiction had not taken any steps before the couple travelled to Ireland, therefore they had travelled lawfully and that was the fundamental difference between this particular set of circumstances and child abduction where a child would be taken from one member state to another without the consent of those with lawful parental responsibility. In that situation the court had to return the child, it was mandatory. However an Article 15 application had discretion and had to look at best interests.

Father’s barrister: “The point was raised in relation to nationality, I accept [the baby] is entitled to citizenship [of the other jurisdiction], once both parents are citizens [there] but once they are both lawfully entitled to reside in this country this child is entitled to Irish citizenship.

“The plaintiff has to prove there are exceptional circumstances as to why the child has to be transferred, they haven’t reached that burden.”

Senior counsel for the CFA: “I know you’ve read my pleadings and submissions which is why I was succinct and now there are matters I wish to respond to. If they don’t constitute red herrings, what do? This business of habitual residency is entirely irrelevant. The issue is whether I can show the criteria as set out under Art 15. He is a national [of the other jurisdiction], that is the beginning and end of that argument. McMenamin in the Supreme Court noted with approval it would be entirely artificial to suggest a person cannot enjoy dual nationality simultaneously, even if he is a national [of the other jurisdiction], it is irrelevant.

“There is no way in which it can be spun other than the parents made a conscious decision to absent themselves from the social services in [the other jurisdiction]… The bottom line is that they came here to evade the social services [there].

“It was an extraordinary submission that there were only three contacts made by social services,” said the CFA senior counsel. His solicitor had found 14 examples in a 10 page report of where different people had engaged with parents over the years. They had only been in their last address for a short period of time.

He said the other parties had suggested there was no rebuttal with regard to assertions made to issues of fact. “That’s exactly the point,” he said, there were “issues to be contested on evidence and the appropriate jurisdiction is [the other one].”

The father’s suggestion that actions he took prior to the birth of Child A led to his being noticed by social welfare services, and that this had triggered an enquiry into the welfare of A, appeared to be inconsistent. There were 24 months between the father looking into part-time work and the birth of A, that issue would have to be resolved in the appropriate courts, said the senior counsel.

There was a body of potential witnesses in the other jurisdiction rather than only one or two, so it was not realistic to bring them to Ireland or to hear the evidence via video-link.

Lastly, the senior counsel said it was astounding that the parents had suggested that the fact they intended to remain in Ireland would then preclude them from involvement with their baby when they were purposefully absenting themselves. It was a most extraordinary submission, that because they were exercising their right to stay in Ireland, it amounted to a reason not to remit the proceedings to the other jurisdiction.

The judge told the parties that she would give her judgment in a couple of weeks.

The barrister for the father then told the court that the parents would not be able to travel from [where they were living] to Dublin for the judgment due to costs issues. The judge said they did not need to be present and that she would pass on a copy of the judgment to their barristers.

In her judgment later the judge said that it was clear from Article 15(1) of Brussels II bis, which deals with the regulation of family law disputes across EU boundaries, that exceptions were possible to the rule that jurisdiction derived from habitual residence. It was open to the court to decide that a court of another member state, with which the child had a particular connection, was best placed to hear the case and request a court of the other member state to assume jurisdiction.

She referred to the Supreme Court case HSE v MW and GL, which dealt with the same issue. This judgment found that a child born to British parents was, under English law, automatically a British citizen, and, even if the child was also entitled to Irish citizenship, fell under the Article 15 provision.

“It is very clear in relation to the ‘better placed court test’ that the first named defendant has a very extensive history with [the other jurisdiction’s] social services and medical professionals, as seen in the extensive volume of documents exhibited in this case … As such documentary evidence is in dispute it is necessary that the current proceedings be returned to [the other jurisdiction] where the evidence can be tested, witnesses compelled and decisions made.”

The judge added that it was quite clear that the “best interest test” contained in Article 15 was not a substantive welfare question, but rather a question of appropriate forum. “This court finds, therefore, that it is in this infant’s best interests that his eventual care status be determined in the jurisdiction which has a long and multidisciplinary history of engagement with the defendants.”

See also Archive, 2014, Volume 4, case 3, “Interim Care Order for 17-day old baby”