Judge decides Irish habitual residence of baby born to parents from European country no longer living in Ireland – 2023vol2#35

See also Report Vol1 of 2023 Volume 1, number 18

A District Court judge in a rural town gave a written judgment that an infant in the care of the Child and Family Agency (CFA) was habitually resident in Ireland from the date an emergency care order was made in respect of the child. 

This matter concerned an infant boy whose parents were not resident in the jurisdiction.

Earlier the judge granted an interim care order in respect of the child, which was subsequently extended. At those hearings the court heard that the father was in a war-torn country and the mother in prison in another European country. The parents were represented by the same legal team. The parents’ legal team informed the court they had not had contact with either parent since very early 2023. The legal team said they believed the mother was still in prison.

The CFA social worker reported the boy was doing very well, reaching all his developmental milestones and a joy to spend time with. “He [the boy] is just a delight and developing a mischievous streak.”

The social worker said he had had text contact with the boy’s father who remained in his own country. The father remained committed to the war effort, had purchased a house in his home country and had said he had no plans to return to Ireland. The father’s sister, a paternal aunt, who lived in a neighbouring European country, had indicated that she would like to be assessed to care for the boy. She had engaged with the CFA.

She had flown from her home country to visit the boy on two occasions over a period of four months. The CFA had arranged hotels and taxis for the aunt. The social worker said the access between the aunt and the boy was very positive and the aunt engaged very well. The social worker said that he had been impressed by the aunt’s ability to play with the boy on his level and she responded very appropriately to him.

Of concern to the social worker was the fact the aunt had no concerns about the father’s ability to parent the boy. This concerned the social worker because to date the father had not met the boy and relied on the social worker contacting him to keep him informed of the boy’s welfare. He had left the care of the boy to his sister.

It was also a concern that the aunt had visited only twice in four months, for two days. Access had been arranged for two hours on each day. This had meant the aunt had spent very little time with the boy. The social worker said he had expected the aunt to visit more often. He said the situation remained under review. It was important the boy retained links with his birth family.

The social worker said the mother had left prison but since then there had been no contact with her. There had been limited contact with her while she was in prison. The prison authorities in the mother’s European country had tried to facilitate phone, Skype and video calls but the mother had not attended.

The social worker had been informed by his counterparts in the European country that there had been no activity on the mother’s personal number in that country. The personal number was similar to the PPS number in Ireland which was used for social benefits, health treatment, housing assistance and other social supports. The social worker said that he and his counterparts in the European country wondered if the mother had left the country. He said that he and his counterparts would keep trying to make contact with the boy’s mother as again it was important the boy had that familial link.

The judge asked if section 18 care order hearing dates had been set. The solicitor for the CFA replied there had been an application on behalf of the CFA and the guardian ad litem (GAL) to have the habitual residence of the child declared to be Ireland. This application had been heard and the judge was to deliver her judgment in the next month, therefore the application for the section 18 application dates had not been sought until after the boy’s habitual residence had been decided.

Giving her written judgment on the habitual residence application, the judge said that as part of the application full written submissions had been made by solicitors on behalf of the GAL and the Child and Family Agency (CFA). There had been no submissions from the mother or father or their legal representatives. The judge noted that the parents had the same legal team they had received no instructions from their clients about the application. The judge had said from the outset she had applied a decree of caution. The father’s English had been poor, and he required the use of an interpreter. The mother had been in the throes of addiction.

She said the facts as they were known were that the mother and father arrived in Ireland from a European country in the spring of 2022. The CFA had been first contacted in early summer of 2022 by a referral from a maternity unit in a local hospital, where the mother had presented pregnant. She had a chronic and serious drug addiction.

The social worker had met with the parents who were then living in a camper van and had attempted to aid the parents to secure housing. She also offered them supports to enable them to avail of social services. The infant was born in the summer of 2022, when both parents were legally residence in Ireland. Given the concerns the social worker had about the mother’s addiction, the general presentation of the parents and their accommodation, the social worker informed the parents two days after the birth that she was going to apply for an emergency care order. The mother left the maternity unit on that day without the infant and the following day the CFA applied for and was granted an emergency care order. The first interim care order was granted three days’ later and the infant was placed with foster carers, where he remained since.

After the first interim care order was granted the mother and father did have some engagement with the social workers and the CFA and had attended court on one occasion. The father had commenced employment and the social workers helped him to try to secure housing. The mother also engaged with the social worker, but this engagement was sporadic. The social worker had a discussion with the mother about the possibility of her entering into a residential addiction treatment programme. However, the mother and father left Ireland within one month of the birth of the infant and had not returned.

The judge stated the appropriate law applicable to this application was the Brussels IIa Regulation Council Regulation (EC) No 2201/2003. The Brussels IIa Regulation 2003 applies between all Member States of the European Union except for Denmark. The Brussels IIa Regulation 2003 determine which courts of Member States have jurisdiction to decide on matters of parental responsibility or matrimonial matters, where there is an international element. These regulations have since been replaced by Brussels IIb Regulation (EC) 2019/1111. The Brussels IIb Regulation 2019 came into force on 1 August 2022.

The judge said as the first application made by the CFA was prior to 1 August 2022 it was the Brussels IIa Regulation 2003 that had to be applied. She said the relevant date to answer the question of the infant’s habitual residence was the day of the first court order, the emergency care order, which was three days after his birth. The infant had never resided in any other jurisdiction or country except Ireland. He had never left Ireland and had never been to the country where it was believed his mother now resided.

She based her decision on the submissions that were made and on relevant caselaw including U.D. v X.B. (Case C 393/18 PPU). EUR-Lex – 62018CC0393 – EN – EUR-Lex (europa.eu), a UK case. In this case, the High Court of Justice (England and Wales), Family Division (United Kingdom), asked the European Court about the interpretation of Article 8(1) of Brussels IIa Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. The court found that: “The habitual residence of a child, within the meaning of Article 8(1) of Council Regulation (EC) No 2201/2003 corresponded to the place where that child has its de facto centre of interests. That place must be determined in the light of all the circumstances of each individual case.”

The judge then asked the question: “What was the infant’s status on the day of the emergency care order, [x] July 2022, and what were the relevant facts to that?” The judge said the parents had come to Ireland on a voluntary basis and had engaged with the CFA. The father was working in Ireland and had actively sought accommodation. The mother was considering the possibility of residential treatment. The infant had remained in hospital from the day of his birth until he was placed in foster care six days later, where he had remained. Any intention for the mother and father to leave Ireland either together or separately was formed after those dates.

The judge said, based on the factors she had outlined, the submissions, the case of U.D. v X.B. (Case C 393/18 PPU) and the application of the Brussels IIa Regulation 2003, that according to Article 8(1) of Brussels IIa Regulation 2003 the infant was habitually resident in Ireland from the date of the emergency care order.