The recent case of the HSE –v- LG and JJ  IEHC 297 displayed the view of the High Court of applications made to it to request the Courts of another Member State to assume jurisdiction in care proceedings. The application in this case related to a child who was born in Ireland of English parents and was the subject of care proceedings here.
The background to this case is that the parents (LG and JJ) of the child (HJJ) arrived in Ireland at the beginning of May 2012. HJJ was born shortly afterwards on the 24th of May 2012. HJJ was the first child to the couple but LG had two other children from a previous relationship. A full care order in respect of those two children (R &R) was made on the 25th of April 2012 after a four day hearing. There had been an initial application by the mum to have an adjournment of the hearing but same was refused and LG did not thereafter attend court. After or during the care proceedings in relation to R & R LG travelled to Ireland. Concerns were expressed for the safety of LG’s then unborn child during the care proceedings in relation to R & R. A decision made been made by the Social Services in the UK on the 11th of April 2012 that an application would be made for an emergency placement order upon the birth of LG’s third child.
The day after the birth of HJJ an application for an Emergency Care Order was moved in Sligo District Court. An initial period of eight days was granted and a further period of 28 days was granted subsequently. LG was present and consented with representation from the Legal Aid Board. LG did not appear in court thereafter and on the 20th of June JJ appeared and indicated that LG had returned to the UK. JJ objected to the extension which was nevertheless granted.
The ICO was thereafter extended a number of times. In the early days both LG and JJ availed of access and expressed a determination to have their child returned to them. However in June 2012 both left this jurisdiction with apparently no intention to return. The HSE contacted the parties in the UK and they confirmed they would not be returning but would be seeking the return of their child to the UK.
In August 2012 LG contacted the HSE to inform them that she was taking advice in the UK with the intention of having HJJ returned to her care. She indicated that she was no longer in a relationship with JJ as he assaulted had her. JJ served a twenty week sentence for the assault. In October 2012, on his release from custody, JJ phoned the HSE indicating that he sought to be assessed as potential carer for HJJ and so did his mother. HJJ’s maternal grandmother also sought to be assessed having had access with HJJ when she visited her sister in Mayo.
In the most recent contact by LG with the HSE (March 2013) a change of attitude was displayed. She said that she wanted to a permanent carer for HJJ but that she wanted HJJ to remain in Ireland until she resolved her own personal issues which she accepted prevented her from caring for HJJ at that time.
The Order sought herein was under Article 15 of the Council Regulation EC Number 2001/2203. Article 15 provides that if a Member State having jurisdiction to hear the substantive matter determines that another Member State with which the child has a particular connection would be better placed to hear the case and where it is in the best interests of the child, that Member State may request the court in another Member State to assume jurisdiction. In determining whether ‘a special connection’ exists between a child and a Member State the court can have regard to the habitual residency of the child, the former habitual residency of the child, the location of the child’s property, the place of the child’s nationality and the habitual residency of a holder of parental responsibility.
Mr Justice Birmingham indicated that first task was to determine whether a ‘particular connection’ existed with another Member State. If a particular connection was established he would then consider whether the courts of England and Wales would be better placed to hear the case and whether it would be in the best interests of HJJ for the case to be transferred to the courts in England and Wales.
Mr Justice Birmingham relied on an opinion of leading Counsel obtained in a similar case, that a minor born in Ireland of British parents is a British national. In that case, McL (unreported High Court), Birmingham J made a request that the case be transferred to the UK. When that case came before the High Court in the UK Cobb J commented that there was no doubt that the UK jurisdiction was the place of that child’s nationality. Accordingly in this case Birmingham J held that HJJ was a British citizen by descent. He also held that the UK was the place of habitual residence of the child’s mother and father.
In deciding whether the court of England and Wales were better placed to hear the case Birmingham J looked at the advantages that court would have –
- Both parents had expressed a desire to have HJJ returned to the UK.
- The defendants were no longer in the State and they were no longer instructing solicitors in this jurisdiction.
- There was much information about the family unit already assembled from other care proceedings and the UK would have access to that data.
- The professionals who prepared the reports would be more readily available in the UK
- Both parents and maternal grandparents had sought to be assessed as carers. They would be available for assessment in the UK.
HJJ would had real connection to this jurisdiction other than the chance of his birth taking place here as a result of a tactical decision by his parents to avoid an application by the UK courts to seek a care order on his birth.
Birmingham J looked to whether it was in HJJ’s best interests that the case be transferred. He deemed that was. He said a significant factor was that HJJ would have contact with his half siblings and members of his extended family there.
Accordingly, Mr Justice Birmingham said that he would make a request to the courts in the UK to assume jurisdiction.
For more information, please contact any of the following from our Child Care Law Department:
- Suzanne Dowling, Associate Solicitor
22 July 2013