The High Court agreed to request the courts of England and Wales to accept a second case where a baby was born in Ireland to English parents and the parents returned home, leaving the child in care in Ireland. The mother consented to the transfer of the case to England.
The child was taken into care when the staff in the maternity hospital where he was born alerted social workers following the birth. They were concerned that the mother had no ante natal history and the parents were evasive about their circumstances. The Irish social services contacted the UK social services and discovered that the family had a history of involvement with the services and the mother had had a child taken into care and adopted in England nine years earlier, while the mother was in prison. She had a history of mental health problems, self-harming, drug abuse and drug dealing. At the time of the birth of the baby she was not taking medication for her mental health condition.
The father of the child had children from a previous marriage who had been on the child protection register due to injuries inflicted by the father. He had a number of criminal convictions, including for arson, an assault on his son and rape, the latter resulting in him being placed on the sex offenders register for life.
The local social services were in the process of conducting an assessment of the couple when the mother was 32 weeks pregnant, and had decided to issue an application for an Interim Care Order when the child was born. However, in the meantime the couple left their home in England and travelled to Ireland without informing the social services. The assessment by the English social services was that the level of risk to the baby was such as to justify placing him in foster care and having him adopted.
Following receipt of the information from the English social services the HSE applied for and obtained an Emergency Care Order and then an Interim Care Order for the baby, to which the mother consented. For the next couple of weeks the couple had access with the baby for three hours a day, five days a week. However, three weeks after the birth of the baby the couple returned to England, leaving the baby in care in Ireland. On their return the father was arrested for breaching the terms of his release from prison after the rape sentence, which stated that he inform the police whenever he travelled abroad.
The HSE asked the High Court to transfer the case to the courts of England and Wales, on the grounds that, under European law, the baby was a British national and his parents were habitually resident in the jurisdiction of England and Wales. The HSE also argued that it was in the baby’s best interests to be in a jurisdiction where his half-siblings lived and that a placement near them would be in his best interests.
Access with his family would be difficult if he remained in Ireland, according to the senior counsel for the HSE. He also argued that given the history of the family, assessments of the child, his family, and suitable placements would best be carried out by the authorities familiar with the case. Some of these assessments had already been made, he said.
Counsel for the HSE also said that the fact that parents came to Ireland was an indication of their wish to maintain contact with their child, which would most easily be done in the UK.
Counsel for the mother said she was consenting to the application for the transfer of the case to the English courts, as she was not intending to return to Ireland. “She is very committed to having the baby returned to her,” the counsel said, and she was in the process of instructing a legal team in England to pursue this.
He said the child who had been adopted had initially been placed in the care of a relative, who sadly died. Then adoption proceedings were brought and the mother had had no access with this child since. This was the experience that brought her to Ireland, as she had been told by social workers this baby would be put up for adoption at birth.
The couple had returned to England for documentation but the father was arrested and had to serve a short term in prison when they arrived. The mother had also stayed in England and was not now intending to come back to Ireland. She wanted arrangements made for access to the baby in England.
Senior counsel for the child’s guardian ad litem said that the Brussels II convention stated it was generally in the interests of a child that proceedings relating to him or her should take place in the child’s place of habitual residence. The Supreme Court judgment in the Nottingham County Council case (concerning the return of a child who had been brought to Ireland while in the legal care of an English local authority) seemed to have put paid to the idea that the fact there may be an adoption was a reason to permit a child to stay in Ireland, he said.
He said the GAL recommended various steps that could be taken to protect the child’s interests.
Mr Justice Birmingham said he did not think it was either feasible or appropriate to seek undertakings relating to the UK authorities. Counsel said the GAL was suggesting things that could be brought to the attention of the English authorities.
Mr Justice Birmingham said he would deliver a written judgment later. Because the mother consented there was no opposition to the transfer.