S (No. 3) (Care Proceedings) (Article 56: Placement in the Republic of Ireland), Re

I am concerned with the interests and future of S. S was born in the Autumn of 2017, so she is now 18 months old. S is the daughter of her mother, M, and her father, F. S has lived since her discharge from hospital with FC1 and FC2 (“the FCs”) in the capacity initially as foster carers for the Child and Family Agency of Ireland (“the CFA”) and latterly, after the English courts accepted the transfer of the care proceedings, as foster carers for an English local authority (“the LA”). S has an older sister, Y, born in the summer of 2013, whom she has never met and who was adopted, following care and placement order proceedings in England, concluding in September 2014, the adoption order being made in 2016. S also has a younger sibling, X, born in late 2018. X was also placed by the CFA with the FCs, pursuant to orders in the courts of the Republic of Ireland (“the RoI”), at birth. The girls have lived together, with the FCs, ever since.

The final hearing before me was heard over 5 days on 18^th to 20^th and 25^th and 26^th March 2019, judgment being circulated in draft on the sixth day, pending notification of Article

The LA applies for final orders by way of proceedings brought pursuant to Part 4 of the Children Act 1989 (“CA 1989”). In the event, however, it does not seek a final care or supervision order (pursuant to section 31, CA 1989); nor does it propose permanence through adoption. Rather, it seeks to render permanent the placement of S with the FCs by way of the court’s making a special guardianship order (“SGO”) pursuant to sections 14A and 14B CA 1989.

The parties are agreed:

The principal issue between the parties is whether the rationale underlying the decision that S should continue to live with the FCs and that there should be a special guardianship order in their favour represents a decision:

The LA, the CG and, to the extent that they descend into the fray, the FCs contend that the placement ought to be considered permanent. They urge on me the facts first that S

M and F, on the other hand, while they do not currently accept the fundamental

To the extent that it is possible to resolve this principal issue, the answer then serves to inform the second issue between the parties: what is the appropriate level of ongoing contact between the parents and S? The parents, asserting as they do that the SGO represents no more than a holding position while they improve their circumstances, before resuming the care of their daughters in due course, seek an order that contact continue at the level of the last 18 months, that is, thrice weekly. Conversely, the LA and the CG assert that the placement with the FCs is a permanent one and thus that the purpose served by ongoing contact relates more to imbuing S with a sense of self and identity through her childhood, rather than the perpetuation of a significant, day-to-day relationship with her parents. The LA would have suggested contact every two months. The FCs, however, with full knowledge of what is entailed, and currently and, it is thought, for the foreseeable future taking X to contact three times every week, at least through the remainder of the two-year care order made by the courts of the RoI, consider that monthly contact between S and her parents is both manageable and appropriate. In those circumstances, the LA and the CG do not disagree.

Once the court has determined the appropriate level of contact, there is no consensus as to the way in which this is to be recognised in my final order. The question is complicated by the fact that the order of this court will require recognition and enforcement in the RoI. In the course of submissions, a tension emerged between:

The parents have each endured extremely difficult and traumatic lives. The detail of these, although clearly relevant to the adult psychological makeup of each, will not serve hugely to illuminate this judgment or to inform my ultimate decisions and so can appropriately be recorded simply in summary.

M was removed from her mother’s care aged two, due to significant physical abuse and neglect. Her experiences did not markedly improve thereafter. She was placed in foster care, then with her maternal grandparents, although her grandmother died when M was four and a half years old. The care order was discharged, although it seems clear now that any positive reports of the subsequent care she received were misplaced. M has described a fully sexually active ‘relationship’ with a 16-year old male when she was nine years old (so clearly, in fact, her being abused); and again with a slightly older boy when she was ten.

M has received three relevant cautions.

On 15^th June 2005, she was cautioned for common assault. Contemporaneous records

On 1^st March 2006, she was cautioned for two offences of sexual assault of children, one a two or three-year old boy, the other a young girl, by touching them in the genital area while she worked at a nursery. While she has since disassociated herself from the truth of what she concedes she told police contemporaneously, describing herself as having been misled, she said at the time that she often thought about touching children sexually, or they her. She also said that she frequently thought about hurting children. She admitted having hit her father’s partner’s son a couple of years earlier, when babysitting, and having struck two other children when looking after them for doing little things

Due to these admissions, as well as being placed on the Sex Offenders Register, M was the subject of sexual risk assessment by the Lucy Faithful Foundation.

F’s childhood contained far more than his fair share of highly traumatic incidents. He has spoken to professionals over the years of having experienced significant bullying, very strict boundaries, the fracture of his family, childhood bereavement, having been sexually abused by his grandfather and the same grandfather having been caught in possession of

The parents met in 2008.

Y was born in July 2013. She first became known to the LA after a referral was made by hospital staff. A core assessment concluded any risk to Y to be low and that there was no ongoing role for the LA. A further referral was made by the GP in October 2013 after M told the GP that F had become angry changing Y’s nappy and had been rough with her; also that he had once squeezed her and she had screamed. The LA issued an application for an interim care order in relation to Y on 12^th December 2013. Initially Y remained placed with her mother and an interim supervision order was made. Later in the proceedings, Y was removed into foster care.

During the care proceedings, M was the subject of further assessments. In the process of these, M admitted to having previously written down her fantasies about sexually touching children and engaging in full sexual intercourse with them, to having previously touched children sexually, herself becoming sexually aroused in the process, to having masturbated herself, with a child in her presence, and to having used adult pornography to augment her masturbatory fantasies involving children.

During the final care hearing before HHJ Lynch in September 2014, M came to deny having said these things. (Indeed, she maintains that denial to date and speaks of the professionals and the judge involved in the proceedings in the most denigrating of language.) However, HHJ Lynch found as proved, inter alia:

In relation to F and his difficulties managing his anger, HHJ Lynch heard from the foster carer who had looked after Y after her removal. The foster carer gave examples of F reacting inappropriately angrily towards her, for example, annoyed in relation to a difference of opinion as to the correct type of milk, threatening her on the telephone that he would ‘get in touch with the authorities and make sure that everyone knew and that I would never work again’, and on other occasions, shouting and behaving aggressively, frightening a twoyear old in placement. Although F denied or minimised, HHJ Lynch found the FC to have given an accurate account. The judge also found F to have behaved aggressively to the social workers and the children’s guardian in the case (and ‘far in excess of what one might see with other parents in an equally stressful situation [in care proceedings]’). The judge found:

A further theme in the case before HHJ Lynch was that F considered that M posed no

HHJ Lynch made a final care and a placement order in relation to Y in September 2014. Y was duly placed with prospective adopters, the final adoption order having been made

In relation to the findings of HHJ Lynch in those proceedings, the parents are now in a somewhat difficult position given that they continue to deny (a) (so far as the mother is concerned) the truth of some of the things she admits having said to professionals, (b) having said some of the things professionals have attributed to them, (c) that the findings of the judge are accurate both in relation to disputed factual matters and the assessment by the judge of the risk. Of course, there is no strictly applied principle of res judicata in English children law; in certain circumstances, previous findings can be reopened and considered afresh by a judge. In the current case, however, the parents’ formal position has been as recorded in the identically worded preamble included in several of the interim

In 2017, the parents moved to the RoI from the north of England. At the time, M was 5 months pregnant with S. M is entirely frank in acknowledging that her flight to the RoI was designed to put her then unborn baby beyond the reach of a family justice system which contemplates non-consensual adoption as a consequence of public care

M was briefly admitted to an acute mental health unit shortly after the birth and removal.

Since then, M became pregnant again, giving birth to X in November 2018. X was also

In order fully to understand the progress of this litigation, this judgment may be read together with the judgments on 12^th April 2018 of Francis J, CFA (Ireland) v F [2018] EWHC 939(Fam), on 29^th October 2018 of Mr D. R. L. Garrido QC, sitting as a High Court Judge, Re S (Care proceedings: Article 15: Second Transfer) [2018] EWHC 3054 (Fam) and mine of 27^th February 2019,Re S (No. 2) (Care Proceedings) (Article 15: Second Applicationfor Second Transfer [2019] EWFC 12. Each of those three judgments dealt with applications made for transfer of the case pursuant to Article 15 of Council Regulation (EC) No. 2201/2003 (“BIIa”): the first, a request that the English courts accept the transfer of the case from the jurisdiction of the RoI; that request having been upheld, the second and third being applications made by the parents that the case be transferred back from England to the RoI.

I set out in my judgment in Re S (No. 2) the regrettably long procedural history to the

Notably, in between (d) and (e) (above), the decision was taken that, while the English courts would assume jurisdiction in relation to S, she would remain, in the interim, placed with the FCs, with whom she had lived since birth. While this, of course, has provided S with consistency, it has injected into the case the current complication that, the FCs having become the preferred carers of all parties, the Family Court in England, with its arsenal of English legal concepts, principles and potential orders is seeking to legislate for the placement of and other arrangements for a child in an entirely separate sovereign state.

My judgment in Re S (No. 2) dismissed the parents’ second application for a second Article 15 transfer. My reasons for doing so are set out in full in that judgment. In large part, my rationale derived from the fact that the final hearing of the application was already wholly prepared for and listed in England.

It is that final hearing which has proceeded before me last week and this. As well as reading the relatively voluminous papers, I heard evidence only from:

Psychologist, Melanie Gill, has assessed both parents. That assessment has been very comprehensive, using a number of models and techniques, but employing as its principal theoretical base Crittenden’s Dynamic Maturational Model of Attachment and using a Structured Professional Judgment (SPJ) protocol, which, she writes:

I need not burden this judgment with too full a summary of Ms Gill’s conclusions, when

In relation to M, Ms Gill writes:

As to F:

Of some relevance to M’s current insight and attitude, Ms Gill wrote this:

Much of Ms Gill’s oral evidence related to her recommendations as to appropriate

In relation to M, she recommended either Schema Therapy or Sensorimotor

Ms Gill indicated in the one similar case she could call to mind in which Sensorimotor Psychotherapy was used, it was two to three years before real progress was seen. In the current case, she was of the view that M would require a course of such therapy lasting ‘at least two years, maybe more.’ She was at pains in her oral evidence to point out, as above, that this is an extremely challenging type of therapy for the patient, leading, as it does, to

In respect of F’s therapeutic needs, Ms Gill recommended a short (8 – 10 session) course of Eye Movement Desensitisation and Reprocessing (EMDR), described thus:

This would then need to be followed by a course of Psychodynamic Psychotherapy,

In conjunction with the psychotherapy:

In relation to both parents, it was clearly expressed in Ms Gill’s oral evidence that:

As to availability and funding, the evidence, in combination from Ms Gill and the parents, does not permit of complete clarity. What seems to have emerged is this:

Ms Matthew was the author of a statement, an assessment of the parents and the care plan. Although she had not undertaken the assessment of the prospective special guardians (undertaken in accordance with schedule 21 of the Adoption and Children Act 2002 (“ACA 2002”)), she was very familiar with its contents and has had sufficient dealings with the prospective special guardians to have formed a clear view as to their abilities and characteristics.

Ms Matthew indicated throughout her evidence that, from the LA’s point of view, there is no realistic prospect of the parents being in a position to care for S within a timescale which is consistent with S’s welfare. This assessment underpinned and informed the LA opinion that ongoing contact between S and her parents after this court’s final order would serve the purpose of meeting S’s needs in relation to identity and sense of self. She was not moved in cross examination to depart from this view. The LA view had initially been that contact six times each year would adequately fulfil this function. When the FCs indicated their view that monthly contact would be appropriate, the LA gladly fell in line

Although the LA’s position seems to have moved somewhat since, Ms Matthew indicated in her evidence in chief that the LA were recommending a defined contact order, not because the FCs were not to be trusted – in fact all they have said and done suggests their absolute recognition of the importance to S of knowledge of her parents; rather it was because she wanted there to be insulation for the FCs’ benefit from attempts to reverse the decision of this court (if it accords with the LA and FCs’ opinion) when jurisdiction reverts to the RoI.

While Ms Matthew accepted that contact at a level of three times weekly had not thus far destabilised S in her placement, she asserted that there was scope for this in the future.

Ms Matthew told me of a recent incident after a contact at which it was felt by the RoI social work team that F had been unreasonably challenging of the FCs, to the extent that the CFA has tweaked the ‘handover’ arrangements for X’s contact so that the FCs do not now come into contact with the parents. The LA has not mirrored this stance in relation to the contact with S alone. Without proper evidence I can take this matter no further. I note in passing, though, that, however well-intentioned the adults may be, there is much scope for disagreement when birth parents who desperately desire to care for their child are forcibly prevented from doing so, for reasons they do not accept as valid, and they

In light of a change of stance by the FCs and the parents, Ms Matthew was able to secure LA commitment to fund the professional supervision of contact between S and her parents, at least at a frequency of once per month.

An expert opinion has been sought and obtained from Michael Lynn, a Senior Counsel (the equivalent of a Queen’s Counsel) at the Bar of Ireland with particular expertise in

His extremely clear and helpful advice, so far as it remains relevant to the case in its current form, can be quickly summarised:

Expert advice has also been sought and obtained from David Leahy, Counsel at the Irish Bar. Mr Leahy practises mainly in the area of child care, with particular emphasis on the

Mr Leahy’s two formal written advices have been extremely clear and helpful. They have

Before setting out Mr Leahy’s advice, it is helpful to make reference to certain

Limited to what is relevant to the case as it now stands, I summarise Mr Leahy’s advice thus:

Mr Leahy provided a helpful summary of his advice in relation to the question of post-

Neither parent felt able to travel from RoI to participate in the proceedings in that way. This was in part due to the fact of the frequent ongoing contact with S and X in the RoI and in part to their profound mistrust of the English courts, child protection system and professionals. Given their perception of the manner in which their eldest child was removed from their care and adopted without their permission, there can be no real surprise at or criticism of the parents for holding the views they do.

Very fortunately, both were represented by English solicitors and specialist English counsel. I should pay tribute in passing to the highly professional way in which the parents’ lawyers ensured the complete representation of their lay clients, in less than ideal circumstances.

Both of the parents gave evidence to me by video-link from the RoI. I was impressed with the politeness and respectfulness of both. (I was also particularly grateful to the mother’s solicitor, Miss Hoare, for travelling to the RoI in order to ensure that the parents were both prepared for and able to give their evidence and that the technical arrangements worked; given that there were recurrent issues with the technology, I suspect that her physical presence saved the day.)

It was clear from M’s evidence that:

It was apparent that M lacks insight into and acceptance of the extent of her difficulties. That said, this is entirely unsurprising, given Ms Gill’s evidence as to her highly advanced psychological defence systems; nor is such a position necessarily to be seen as a contraindicator to the possibility of the effectiveness of the Sensorimotor Pyschotherapy recommended.

As to F, he shares each of the views I attribute to M at sub-paragraphs (a) to (g) (above). He told me that he did not have a problem with anger; rather, he was very ‘emotional’ at various points in previous proceedings. His view of any professional whose assessment of him or M was not positive was that they had ‘turned on [him]’, that their behaviour was ‘shocking’. To the final question in cross-examination on behalf of the CG, whether any of the criticisms of him or M had been fair, he indicated his clear view that they had not.

His very final words in evidence, however, were poignant. When I asked him if there was

On the part of both parents, insight into the past and into the degree of their individual and collective problems is clearly still very limited, notwithstanding this being their third set of child care proceedings to be reaching a conclusion. That said, I do not put much store by the degree of defensiveness and the absence of insight I discerned in both of the parents in their evidence: their current attitudes are exactly as described by Ms Gill and are not doubt attributable to their individual psychopathologies, also as described.

Ms Powell accepts Ms Gill’s assessment. She agrees with the LA’s assessments both of the parents and of the FCs as prospective special guardians.

She was at pains to point out that she sees S’s home with the FCs as being ‘a home for the rest of her childhood’. S, the CG was clear, needs a clear decision as to her permanent future family. In striking and graphic terms, she spoke of how S – clearly fond of, familiar and happy to spend time with her parents – regards the FCs as (what adults might dub) her

The CG was equally clear that contact should be significantly reduced from its current very high levels. After an order is made which – on her case – reflects the permanence of S’s placement with the FCs, the frequency of contact should be adjusted to reflect its amended purpose. She took no issue with the relatively swift reduction programme proposed by the LA, nor with the proposed frequency of monthly.

The CG was entirely confident in the FCs’ ability to recognise the importance of maintaining contact between S and her parents and to make appropriate decisions for her in her best interests. She was worried about an order tying the FCs into a regime which was not ultimately appropriate and was eager to protect them, to the degree that this is possible, from being dragged into litigation in the RoI.

In making decisions about S, I am bound to treat her welfare as my paramount

I must bear in mind both the non-exhaustive list of factors set out in the so-called welfare

Article 8 of the European Convention on Human Rights is clearly engaged, and is protected by virtue of section 6 of the Human Rights Act 1998: the court must respect the private and family life of the protagonists. In the current case, S clearly has ‘family life’ (within the meaning of Article 8) with her parents, with her sister X, and, in my view, with the FCs. It follows that each of M, F, FC1 and FC2 have ‘family life’ with S.

The order I am asked by all parties to make is a special guardianship order. This is a creature of statute, whose advent was brought about by the insertion into the Children Act 1989 of sections 14A to 14G in December 2005 (by operation of the Adoption and

Insofar as relevant, sections 14A to 14D provide:

The true essence of the order is tucked away in section 14C(1): a special guardian:

It is important to note that while an adoption order is all but irrevocable, a special guardianship order is susceptible of variation or discharge. However, the bar is set high: any application to vary or discharge brought by a parent requires leave, which will only be granted if the parent can demonstrate ‘a significant change in circumstances since the making of the special guardianship order’. (See subsections 14D(3)(b) and (5), CA 1989). It is important to note that, while establishing a requisite change in circumstances will open the door to being given permission to proceed with an application, it will in no way be determinative of that application. The paramountcy of the child’s welfare will, as always, steer the adjudication of the application. If, effectively, a change of the child’s place of residence and primary carers was being sought, it is likely that, other things being equal, significant account would be taken of the longevity of the child’s placement with the special guardian(s), the degree of attachment to them and the likely impact on the child of a significant change in her circumstances.

In many ways the parents have improved their situation since the 2013-14 proceedings before HHJ Lynch. Their move to the RoI has enabled them to realise a number of tangible benefits and improvements. They are both immersed in the community of the church of which they are members. As such, they, and in particular M, have a support network which was not available to them in previous years. Their relationship seems to be in a relatively stable stage. F is working. They have accommodation, albeit somewhat limited, and describe being in a financially buoyant position. M’s physical health is good

Even if the parents do not accept the validity of the conclusions of Melanie Gill, the fact they are both professing themselves eager to avail themselves of and to engage in the recommended therapy can only be positive.

That they have maintained frequent and regular contact over, now, some 18 months, demonstrates both a commitment to S (and, latterly, X) and a degree of stability in their

However – and to their credit – they accept that S cannot currently return to their care.

This is because, sadly, there is also much which has not changed since the previous proceedings. The principal difficulty is that these two adults are the product of their respective dysfunctional and abusive childhoods. They cannot in any real sense help being

Ms Gill concluded (I summarise) that:

I accept this assessment of risk. As articulated by me in the above paragraph, I find that all of these risks are currently present, that they are significant, and that the harm likely to

It is a positive feature in the parents’ lives that Melanie Gill has identified, with some precision, what types of therapy, over what likely timescales, might – if there is successful engagement – lead to a meaningful improvement in the parents’ psychological

Thus it is that both of the parents consider that, within two years at the most, they will both be able to demonstrate that they are able to assume the care of S (and of X).

It seems to me that the prospects (a) of the successful conclusion of the proposed therapy, and (b) within the sort of timescales the parents propose, are very much less than solid. There is a whole host of uncertainties inherent in the proposed process. First, it is currently unclear whether there is an appropriate provider of the Sensorimotor Psychotherapy required by M. While it is more likely that F could find appropriate therapists, the second difficulty is funding: I am not persuaded by any evidence that either the CFA or the Irish Health Service will necessarily fund what is identified as needed; nor do I consider it realistic to suppose that the parents will be able to fund this, especially over a sustained period, as they contend. Thirdly, for both of the parents, the level of engagement and commitment required is huge. Whether either or both are able to engage to the extent and for the duration needed is entirely untested. I accept their relative doggedness (as demonstrated, for example, by their move to the RoI in order to defeat the prospect of non-consensual adoption), but what is required to engage in this sort of therapeutic process is of an entirely different magnitude. Melanie Gill spoke of the mental and physical pain which is to be expected during the therapy she proposes for M; the outpouring of negative memories can be ‘very upsetting’ and the process may also be ‘just physically too painful’; she told me that, for this reason, many are simply unable to maintain attendance and commitment. The prospects of prolonged, successful engagement are entirely uncertain. Fourthly, the timescales, it seems to me, are longer than the parents might hope. In relation to the Sensorimotor Psychotherapy, Melanie Gill’s evidence was that this would take weekly commitment for ‘at least two years, maybe more.’ Even at the point of the ‘successful’ conclusion of the proposed therapy, it is likely that significant

In short, notwithstanding their strong desire to do whatever is necessary to assume the care of their children, it seems to me very unlikely that the parents would be in a position

As I have found, the parents are not able to provide safe or appropriate parenting, now

Conversely, S is placed with FC1 and FC2. They began their parenting of S as foster carers for the FCA of Ireland, latterly as foster carers for the English LA. Across these two guises they have had the care of S for 18 months. There is no suggestion but that they have provided an excellent standard of care at all times. It is clear that S is settled in the home and attached to each of them. I have read a long and comprehensive assessment of them, their lifestyle, their characteristics and their abilities. It is entirely positive. I have heard the oral evidence of the English social worker and the CG. In relation to the FCs, this was also expressed in glowing terms.

Of particular importance is the professional assessment that the FCs demonstrate an

Comparing the options for S, it seems abundantly clear that she cannot live with her parents. She should remain living with the FCs. To the extent that this represents an interference with her and with her parents’ Article 8 rights, I consider this to be both necessary and proportionate to the risks from which I must protect S.

There was debate at various points as to whether the placement with the FCs should be underpinned by a care order (pursuant to section 31, Part 4, CA 1989), by operation of which the English LA would retain parental responsibility for S, the FCs acting at all times as her foster carers, or by a special guardianship order (pursuant to section 14A, CA 1989), which would invest the special guardians with (over-reaching) parental responsibility and reduce the status of the LA to a body with statutory responsibility to provide certain

None of the parties contended for a care order. I agree.

Mr Day, in his very helpful written, closing submissions, set out twelve factors militating against the making of a care order in preference to a special guardianship order. I accept each of those factors, which I paraphrase and collate below:

I am quite satisfied that a special guardianship order is the appropriate means by which to secure S’s placement with the FCs. This will enable them to continue to look after her, to make decisions for her without having to consult with a corporate entity on the other side of the Irish Sea and to protect her from the risks posed to her by her parents, whether of direct harm or through the destabilisation of the placement.

S is now 18 months old. It has taken an unconscionable amount of time for her case to reach this final hearing. I shall not burden this already long judgment with further comment in relation to this. However, the upshot is that S has spent her whole life the subject of legal uncertainty as to her future. It is a huge advantage to her both that she has spent this whole period with one set of carers and that it is these persons with whom she is to stay. This means that in fact she has not suffered the disruption of moving carers

Notwithstanding this advantage, the time has more than come when final and permanent decisions must be made for S. It is overwhelmingly in her interest, in my view, that the decision made to place her with her current carers qua special guardians is explicitly a long-term, final decision. Neither she nor they should be subjected to years of uncertainty as to whether at some unspecified point in the future there will be an attempt to discharge the order and to place S in the care of her parents.

It might not, in the usual course of events, be necessary to state this in such strident terms. I recognise, however, the importance in the current case of there being clarity as to the intention of this court in making the orders it does: there may come a point in the future when a court in the RoI finds itself grappling with applications to vary or discharge orders which are alien to the Irish family justice system and which are based on precepts equally foreign.

The parents have seen S three times every week throughout her life. They have attended well. The quality of contact is, in general terms, good. S enjoys seeing and spending time with her parents. At 18 months, she has no understanding of the facts that the people she sees at the contact centre are her birth parents, or the people with whom she lives

It is urged on the parents’ behalf, in the attractive and measured submissions of Messrs. Day and Calway, that contact should remain at this (or an only slightly reduced) level. It is rightly said by them:

Implicit in counsel’s submissions and explicitly expressed by the parents is the relevance of the aspiration of the latter to apply, in no more than two years’ time, for the discharge of the special guardianship order and the move of S to their care.

I have already set out above that this is not and cannot be the intention underpinning or even an aspiration co-existing with the special guardianship order. The placement with the FCs is to be S’s long-term placement. As such, the purpose of the contact between S and her parents changes markedly. It is no longer contact at a deliberately high level, with a view to its being consistent with a court-ordered assumption by the parents of the care of S at some point in the near future. Rather, it is contact at a level sufficient for S to have a knowledge of and some relationship with her parents, in order to allow her to establish and maintain a healthy sense of identity, of self and of her life story as she grows. Moreover, she must be enabled fully to develop in the family now judicially sanctioned as being permanent for her. The focus must be on her enjoying a normal family life with

None of this is consistent with her seeing her parents at the frequency that she does. It is of little relevance that X continues to do so: I was told by Mr Leahy that, if there comes a point when the Irish courts or the CFA consider that her reunification with her parents is effectively ruled out, then contact monthly, or even less frequently than that, may well result.

In my view, the preference expressed by the FCs that contact between S and her parents take place monthly more than provides for its revised purpose. The impact on S of the change in her circumstances will be mitigated entirely, in my view, by there being a phased reduction plan (as in fact proposed by the LA) and the fact that she can now spend the time she would have spent in contact enjoying activities with her carers in her baby sister’s absence.

I shall make a special guardianship order in favour of the FCs. This is expressly on the basis that I foresee S’s placement with them as being permanent and enduring throughout S’s minority (and, quite possibly, into young adulthood).

In relation to contact, the question of the appropriate order to make is more difficult.

First, I am clear that contact at a frequency of about monthly is in S’s current interests.

Secondly, I am content that the FCs consider, from time to time, any request for an ad hoc, additional contact, perhaps to celebrate a birthday or Christmas; and that they have complete discretion over this sort of matter.

Thirdly, it is important that there is a period during which the FCs are able to settle into the new regime, to adjust to their new status, and are not susceptible to unsettling

Fourthly, I also consider it important that the FCs are not somehow bound for all time by an order which may, for whatever reason, cease to be consistent with S’s needs. What if, for example, in two years’ time, the CFA or the Irish court reduces X’s contact to six

Fifthly, the parents must be protected in their position. It was suggested during submissions that the FCs be given absolute discretion to decide the level of contact, the proposed order containing recitals as to their current views in relation to its appropriate frequency and purpose. If, for whatever reason (and I stress there is currently no suggestion that this would happen) the FCs decided that there should be no contact, or virtually none, and if the order were deemed unassailable in the Irish court due to the provisions of Articles 21 and 26 of BIIa, the parents might wrongly be left with no remedy.

Finally, while I am doing my best in this judgment to legislate for what is best for S both now and in the future, my gaze forwards can only see so far. I am placing a child with carers in the RoI, whose parents are in the RoI, whose younger sister’s circumstances and future are being decided by the courts of RoI. It would be wholly wrong, in my view, to seek to ensure and maintain the primacy of my view about S’s welfare – at a point when she is but 18 months old – long into the future.

In light of all of the above, my intention is make an order:

The current consent from the Irish Central Authority to S’s placement with the FCs is

For various reasons, the request to the Irish Central Authority to consent to the placement of S on a permanent basis with the FCs as her special guardians was not made as early as

At the point of the preparation of this judgment and its circulation to the parties in draft

Accordingly, and in order to protect my order against the strictures of Article 23, I refrained from handing down this judgment in final form and from making the final special guardianship order until after receipt, on 3^rd April 2019, of written confirmation

I know that my decision, as recorded in this judgment, will represent a huge

I am grateful to the advocates for their skilful handling of the case, not least in circumstances where the subject child and the respondent parents have been in a different country. I am also very grateful to the social workers and the children’s guardian for their diligent work both on the ground and in the presentation of the case to the court.