Supreme Court upholds sending case to UK – 2013vol3#12

The Supreme Court has dismissed an appeal by an English mother against a High Court order that the courts of England and Wales be asked to take over child care proceedings concerning her child, who was born in Ireland.

The HSE had applied to the High Court that a request be made to the Courts of England and Wales to assume jurisdiction in the case under Article 15(1)(b) of EU Council Regulation EC/2201/2003. This Regulation deals with the jurisdiction of the courts in different EU member states concerning matrimonial and parental responsibility matters.

The HSE submitted that the requirements of the Article were met in that it would be in the best interests of the child for any further child care proceedings to be heard before the courts of England and Wales; that the child had a particular connection with the jurisdiction of England and Wales and that the courts there were better placed to hear any further proceedings concerning the child.

In the High Court, the HSE’s barrister had submitted that the mother was a British national and the child, having been taken into care immediately upon birth in Ireland, was now isolated in a jurisdiction where she had no real connection other than it being her place of birth. He argued that it would be in the child’s best interest to have access with her siblings and extended family, who were all resident in the United Kingdom.

He also submitted that the relevant authorities in the UK were far better placed to carry out the relevant assessments in relation to identifying an appropriate placement for the child. He said the mother specifically came to this country for the purpose of evading care proceedings in the UK. He said Article 15 of the EU Regulation was expressly designed to protect against abuse and to enable member states to take definitive and immediate action to counter such abuse.

An affidavit from a HSE social worker stated that the child’s mother came to a maternity hospital a day after she arrived in this country and gave birth there on the following day. The mother said she had moved to Ireland to start a new life with her husband and unborn child and that her husband would follow her here sometime later.

When the HSE made inquiries with social services in England, it was learned that three other children had been permanently removed from the mother, that she had a conviction for child cruelty and had served a prison sentence for attempting to pervert the course of justice. She had previously threatened to kill herself and her children. The HSE also learned that the mother had been diagnosed with a number of personality disorders and had been viewed as a risk to her children and professionals working with her in England.

The social services there had concluded that there was a significant risk of harm to the unborn baby due to the mother’s failure to engage with antenatal or social services. They had decided that an emergency protection order would be sought at the birth and that police would be present at the birth. The mother was aware that this order would be sought and she had also informed a midwife that she would flee the UK rather than be seen by their social services.

The baby was taken into care on the day she was born in Ireland and since then she had been subject to a number of Interim Care Orders. The court was told that the mother had access to her daughter three days a week. The access was supervised at all times and a security guard was also present. The mother was observed to be affectionate to her daughter during access. She was cooperating with the social work department and had attended meetings. The baby had no contact with her father, her siblings or extended family, none of whom resided in Ireland. The court heard that the mother now had a job in this country and wanted to stay here with her child.

The barrister for the mother argued that the details of her previous difficulties were “historic” but the barrister for the HSE said it would be irresponsible not look at that history and examine it. All the documents in the case referred to the UK and there was no doubt that the social services there had an in-depth knowledge of the case. The history was so long that one had to look at it. The social workers here could not go to the District Court (to get the Interim Care Orders) without looking at the background which he said was stark.

The High Court judge described it (the background) as terrifying. He said the case was similar to three other cases that had come before the court but in those cases the mother had returned to the UK. The difficulty here, he said, was that the mother was saying she was going to stay in Ireland. The situation since she came here had changed in that she was now pregnant again.

The barrister for the HSE said there had been a degree of jurisdiction shopping. The mother was a British national and the child’s father was habitually resident in the UK. The reality was there was no connection with this jurisdiction except for the access which the mother was having with her child. There was no second cousin here, no cultural connection. It was, he said, almost an interplanetary situation.

The father and the guardian ad litem were supporting the HSE case. If the guardian said it was not in the best interest of the child [to be returned], then that would be a different matter. One of the factors, the HSE barrister said, must be the views of the professionals and in this case “they are all one way”. The reason the mother came to Ireland was to avoid proceedings in the UK and there was “an air of unreality” about it.

The mother’s barrister said there had been nothing unlawful in the mother’s departure from the UK and her arrival in Ireland. The mother was perfectly entitled to turn up 48 hours before giving birth. She had exercised her right of free movement and there was no dispute as to the child’s habitual residence. “A child who was never in the UK can’t have habitual residence there,” she said.

The child, she said, had two nationalities. She was born here and she and her mother were habitually resident here and the child had dual nationality. The mother’s barrister submitted it was not necessary for the child to be moved to the UK and it was difficult to see how the historical evidence could not be accommodated in an Irish hearing in circumstances where the mother and child were in this jurisdiction. It seemed to her that the Irish court must be in the best position to deal with the matter. The court was being asked effectively to force the child and her mother to England, where there was no other mechanism to return her.

Article 15 could not be used in that way. The evidence which was available in the UK would be available here and there had been considerable cooperation already between the authorities. She also question whether Article 15 could be used in public law proceedings where there would inevitably be a change of parties when a case was transferred to another jurisdiction.

The father’s barrister said he accepted that the UK courts were best placed to hear the substantive case and that in those circumstances it was in the child’s best interests for this court to request the courts of England and Wales to assume jurisdiction. However, at this stage, he did not favour a placement of the child in England and he would only support the application if the courts there considered all the options for the child’s placement.

The barrister who represented the guardian ad litem said the application concerned a request to transfer proceedings, not to transfer the child and, if the court decided to transfer the proceedings, it was by no means clear that the courts of England and Wales would request the transfer of the child. The longer the matter went on the stronger were the arguments against the child being removed from her current placement.

It would have been better if the case had come before the court much earlier and it was unfortunate, to say the least, that the child had been left in circumstances where the issue of where she was going to reside had not been determined earlier, he said. (This hearing was taking place over eight months after the birth of the child). However, he said, the GAL was still of the view that the English courts were in a better position to hear the proceedings.

In his High Court judgment Mr Justice Birmingham held that the courts of England and Wales were better placed to hear the case and that it would be in the best interests of the child that the case be dealt with by those courts. He also held that the child had a particular connection with another Member State.

The mother appealed the decision to the Supreme Court which, in a lengthy judgment delivered by Mr Justice MacMenamin, dismissed her appeal. He concluded that “no error has been demonstrated in the way in which the learned trial judge approached the factual issues, his inferences therefrom or his application of the law to the evidence.

“What was in issue here is not the question of custody or access but rather an application which is brought by the HSE that a request be made to the Courts of England and Wales to deal with the matter. Both the vast preponderance of the evidence and child’s best interests point this way,” he said.