The Child and Family Agency (Ireland) v M & Ors (Article 15(5) BIIA Transfer Request : CJEU Preliminary Reference: Care Jurisdiction)

I am concerned with a little boy called J who was born in Ireland in 2015. He is represented, in these proceedings, by his Guardian Ms Julian and Ms Carew of Cafcas legal. J’s mother is M. She lives in Ireland and although she has been represented in proceedings in Ireland and has been given the opportunity to participate in these proceedings she has not done so. J’s father is F who lives in the area of Denbighshire. He has not participated in the Irish proceedings and has also been given the opportunity to participate in these proceedings but has not done so.

J is the subject of care proceedings in Ireland. The application that I have had to determine is made pursuant to Article 15 of EC Regulation 2201/2003, namely that this court accept jurisdiction in respect of J pursuant to a request made by the courts of Ireland, such that the care proceedings would transfer from the courts of Ireland to the courts of Wales. The application has been made by the Child and Family Agency of Ireland who are the national public authority responsible in Ireland for public law intervention in children’s cases. Flintshire County Council who previously brought care proceedings in respect of J’s older sibling were identified as an interested party and have participated in this application. Denbighshire County Council were also identified as an interested party and have participated in the application. Both county councils were identified as interested parties because of the potential for them to become the designated local authority were the transfer request to be accepted. J himself was made a party to these proceedings pursuant to the order I made on 23 January 2018.

J has lived In Ireland since he was born and has been in foster care since he was a few days old. On 15 July 2015 the Child and Family Agency of Ireland (CFA) made an application for an interim care order which was refused because the mother agreed to him being placed in voluntary care. On 29 July 2016, the CFA made a further application for a care order and on 9 August 2016 an interim care order was made. Those care proceedings continued through 2016 and 2017 and were listed for final hearing in October 2017. For reasons which I have not fully understood it was only at that hearing that the court came to consider whether the proceedings should be transferred to Wales pursuant to Article 15 of EC Regulation 2201/2003 (referred to in this judgment as BIIa). On 6 October 2017, the Irish court determined that J had a particular connection with Wales and that the Welsh courts would be better placed to hear the case. The basis on which it was concluded that the courts of England and Wales were better placed was that the circumstances in which J’s older sibling was injured would need to be explored in particular by hearing evidence from his father who would not be compellable in Ireland and by consideration of documentary evidence which also might not be admissible in Ireland. On 11 December 2017, the Irish court determined that it would be in J’s best interests for a request to be made to the courts of England and Wales to assume jurisdiction and directed the CFA to introduce such a request to the courts of England and Wales. The basis upon which the court concluded that it would be in J’s best interests was that the courts of England and Wales would be able to carry out a full enquiry into the circumstances in which his older sibling was injured and that it appeared unlikely that J’s placement with foster carers in Ireland would have to change prior to a full welfare-based determination by the courts of England and Wales. It is apparent that there was no perceived substantive welfare benefit to J in the proceedings being transferred but rather that provided his placement was not disturbed it was in his best interests for the fullest possible determination to be undertaken of the circumstances in which is elder brother was injured.

On 23 January 2018 that application came before me and I directed that it be determined on 21 February 2018. As a result of the mother’s application, in Ireland, to judicially review the decision that a transfer request be made the hearing on 21 February 2018 was vacated to await the outcome of the Irish judicial review proceedings. On 15 March 2018 Mr Justice Max Barrett dismissed the judicial review application thus opening the door to a resumption of the proceedings in this court. On 18 April 2018 Mr Justice Keehan directed that the application be determined on 23 May 2018 and on 14 of May 2018 Mr Justice Cohen gave further directions including providing for an extension of time the parties to make succinct written submissions. The matter came before me on 23 May but could not be concluded that day because of the complexity and length of the submissions that had been made. I adjourned the matter until 5 June 2018 so that submissions could be completed and on that day I gave my decision with short reasons. This judgment sets out the basis for that decision.

The issue that Article 15(5) of BIIA requires this court to consider when a transfer request is made is whether it is in the best interests of the child to accept jurisdiction. The procedure for dealing with such requests is set out in very brief terms in FPR 12.66. That appears to envisage a very summary process, possibly limited to a paper consideration by a judge of the High Court. As a consequence of the practical considerations which arise in public law cases (in particular that the parties are not the same) the High Court has developed a process which usually involves one short without notice hearing and one short on notice hearing see Re-LM (Transfer of Irish Proceedings) 2013 2 FLR 708 and in the matter of HJ (A Child) 2013 EWHC 1867 (Fam). The President of the Family Division described the function of the court in such cases as ‘fairly limited’ and that what was intended was a ‘relatively simple and straightforward process.’ He described it as being highly undesirable as a matter of general principle that unnecessary delay be permitted. It is therefore most regrettable that the transfer request was not made until some 15 months into the Irish proceedings, particularly given the basis upon which the transfer was sought and on which it was eventually concluded that the courts of England and Wales would be better placed to hear the case. It is also most regrettable that it has taken some eight months between the beginning of the consideration of the Article 15 transfer in Ireland and its conclusion in England now.

The matter was listed for one day on 23 May and on that day, I spent the morning reading the voluminous skeleton arguments and some of the 21 authorities which have been provided along with the essential reading identified from the two lever arch files. The list of essential reading that all parties agreed the court should undertake took more than half of that time estimate alone. The written submissions on behalf of Flintshire ran to 35 pages, the submissions of the CFA combined run to 29 pages, those of Denbighshire to 5 pages, the Guardian’s to 7 pages. The essential reading that I have been asked to undertake out of the two lever arch files has been limited to about 50 pages and I have been provided with a bundle of authorities. The time estimate was set on 23 January and when on 18 April 2018 Mr Justice Keehan relisted the hearing to determine the transfer request at that point the submissions filed by the CFA ran to 9 pages, Flintshire’s were limited to some three pages with Denbighshire’s running to a little over two pages. It is, perhaps, hardly surprising that Mr Justice Keehan considered that the one-day time estimate remained appropriate. On 23^rd of April 2018 Mr Justice Cohen extended time for the interested parties to make succinct written submissions and for the CFA to respond. It hardly needs pointing out that the 31-page document filed on behalf of Flintshire can hardly be described as succinct. As far as I can tell no party suggested that a longer time estimate was necessary than the one-day originally set. The parties’ acceptance that the matters can be determined within one day necessarily means that they also accept that the depth to which this court can delve into the arguments raised will be more limited than they might have wished. Given the multiplicity of issues the parties raised I adjourned the application part-heard. By the time the matter came back the parties had filed a further 16 pages of Skeletons and 13 more authorities dealing with some of the points I had raised on 23^rd May.

The issues which emerged from the skeleton arguments, on this apparently simple and straightforward process were many fold.

As will be self-evident from the lengthy written submissions and the volume of authorities that were deployed, the parties’ submissions on these issues ranged far and wide. I’m grateful to counsel for their diligence in the preparations for this case and I’m afraid that even now in this judgment I cannot do justice to the range and breadth of the arguments that were deployed. Some of the arguments may be developed in another court, perhaps even the Court of Justice of the European Union. But in this somewhat extended but nevertheless summary process, and attempting to deal proportionately with this case, I must inevitably curtail the extent to which I immersed myself in the pool of arguments.

In 2014, M gave birth to a child, R. On 31 July 2014 he was admitted to hospital with multiple soft tissue and bone injuries. On 4 August 2014 an emergency protection order was made in respect of him and on 12 August an interim care order was made and proceedings continued to a final hearing which took place in February 2015. During the course of a four-day hearing His Honour Judge Gareth Jones heard a fully contested care case where the circumstances of R’s injuries were the central focus. The mother, R’s father, the social worker and the Guardian gave evidence. In addition, His Honour Judge Gareth Jones had extensive documentation before him including, R’s medical records, medical reports from a paediatric radiologist and a consultant paediatrician, emergency services records, police records including interviews with the mother and father together with statements from various witnesses. R had suffered: a fracture to the left clavicle, a fracture to the right seventh rib, and probable periosteal injuries to the 6/7 and eighth ribs, together with eight areas of bruising or skin loss. R was four weeks old. The mother’s case when interviewed by police and at the outset of the proceedings was that she did not know how the injuries had occurred and did not believe the father would have inflicted them. However, by 27 October 2014 the mother’s position had changed. By then she was 100% certain that R had been hurt by his father and she set out a number of incidents prior to R’s admission to hospital when she had seen the father handling R roughly. The father also gave evidence. He was treated as a vulnerable witness as a result of a report from a clinical psychologist and special measures were implemented to enable him to give his evidence. He gave evidence that the mother had handled R roughly but did not describe any incident which could have accounted for the injuries R had sustained. He did not directly allege that the mother had hurt R. The judge concluded that what happened to R was a closed secret known only to the mother and the father and that he had sustained his injuries on 31 July 2014 while in the care of the mother and the father. He could not identify on the evidence which parent was responsible. One or other of them inflicted the injuries to R. The judge concluded that each of them knows what has happened but both have chosen to keep silent for reasons of their own. The failure to protect R was considered very significant. The risk to R if he was returned to either of them could not be evaluated but given the other difficulties the judge had outlined he concluded they could not cope with R in the future and cope with him safely. Safety was the dominant feature. These care and placement orders were made and subsequently R has been adopted.

By the time of that final hearing the mother was pregnant. In late March 2015 the mother travelled to the Republic of Ireland where she gave birth to J in Dublin. J was made subject to protection by the Gardai shortly after his birth but an application for an emergency care order was refused on 13 July 2015 because the mother agreed to place J in voluntary care. A further application for an interim care order on 15 July 2015 was refused on the same basis. J therefore remained with foster carers for the following year having contact with his mother but being cared for full-time by foster carers.

In circumstances in respect of which I’m not entirely clear, on 29 July 2016, a fresh application was brought by the CFA for an interim care order and a care order. It may be that the mother had indicated an intention to withdraw her consent to voluntary care or it may simply be that by this stage as a result of assessments and the CFA had concluded that proceedings were necessary to determine J’s medium to long-term future. On 9 August 2016 an interim care order was made. It is clear from the judgment of Judge Brendan Toale delivered on 6 October 2017 (see paragraphs 27 and 29 in particular) that the interim care order was made on the basis of the apprehended risk arising by virtue of what had been found to have occurred to R.

Over the course of 2015 -17 it appears that an assessment was carried out by a Dr K in respect of the mother. It also appears from the judgments of Judge Toale that there have been extensive assessments by social workers, the Guardian appointed in the Irish Proceedings, and other professionals and that there has been considerable interchange between Irish social services and Welsh social services.

Again, for reasons which I have not explored, it does not appear that consideration was given at that stage to seeking a transfer pursuant to Article 15 BIIa. The courts in this jurisdiction have emphasised the importance of the issue of transfer being considered at the earliest possible opportunity. It appears that the early stages of the Irish proceedings were taken up with a dispute over jurisdiction with the Irish court concluding on 1 March 2017 that as at 29 July 2016 J had no habitual residence. On 3 May 2017 the Irish court determined that the Irish court had jurisdiction pursuant to Article 13 BIIa, namely J’s physical presence in Ireland. It was only on 9 May 2017 that the CFA issued an application for transfer of the proceedings to England and Wales pursuant to Article 15. On 4 October 2017 a hearing took place before Judge Toale and on 6 October 2017 Judge Toale concluded that the first two of the three requirements set out in Article 15(1) were satisfied. In particular he determined that the courts of England and Wales were better placed to hear the case because of the fact that, the father of R was present in England and Wales and would be a compellable witness as to the circumstances of R’s injuries, when he would not be compellable in Ireland. The judgment also makes clear that the mass of documentary evidence relating to R’s injuries would be admissible in proceedings in England and Wales but might not be in proceedings in Ireland. On the basis that it was in J’s best interests for there to be as full an investigation by a court of the circumstances of R’s injuries, Judge Toale concluded that the courts of England and Wales were better placed to carry out that function. On 11 December 2017 Judge Toale delivered a further judgment on the Article 15 transfer. In that judgment he determined the third criteria in Article 15(1), namely whether it was in J’s best interests for a request to be made for the courts of England and Wales to assume jurisdiction. In that judgment he concluded that it was in J’s best interests for such a request to be made; the essential components of this conclusion were twofold. Firstly, it was in J’s best interests to have a full investigation of the circumstances of R’s injuries so as to illuminate or determine the risks to J himself. Secondly, because Judge Toale was satisfied that the courts of England and Wales would not alter J’s foster placement without a full welfare investigation, he concluded that there was no likelihood of any detrimental consequence to J’s substantive welfare arising out of such a request. Judge Toale in particular directed himself to the test formulated by the CJEU in the case of CFA v JD (Case-C-428/15). The three criteria specified in Article 15(1) having thus been satisfied Judge Toale made an order on 11 December 2017 directing the CFA to introduce an Article 15 request to the courts of England and Wales but stayed the making of that request until 5 January 2018. No party sought to appeal that decision and so on 5 January the stay lapsed.

Thus, on 23 January 2018 an application was made to me pursuant to Article 15(5) inviting the courts of England and Wales to assume jurisdiction. On that occasion I gave comprehensive directions in line with the approach of Cobb J in Re-LM and listed a hearing to determine the request on 21 February 2018; well within the six weeks specified in Article 15(5). In response to my order Flintshire and Denbighshire both filed objections to the transfer albeit at that stage they were much more limited in scope than they subsequently became.

Unfortunately, the determination of the request then ran into the sands. On 29 January 2018 the mother commenced an application for judicial review of Judge Toale’s decision and Mr Justice Noonan in the High Court of Ireland granted a stay and injunctions which had the effect of putting the Article 15 request on hold. In response to that, by an order on 12 February 2018 Mr Justice Cobb stayed the transfer request and vacated the hearing listed for 21 February. One consequence of vacating the hearing on 21 February 2018 was that the six-week time limit specified in Article 15(5) could no longer be met. On 15 March 2018 Mr Justice Barrett in the High Court of Ireland dismissed the judicial review proceedings. In doing so he agreed that Judge Toale has 2 reasons for considering the English court to be better placed, namely ‘the compatibility of R’s father in any proceedings in England and Wales, and to the greater availability of documentary evidence in England and Wales concerning the circumstances which gave rise to the previous proceedings in England and Wales concerning R which were rational reasons for determining that the courts of England and Wales were better placed. He also agreed with Judge Toale that a transfer of the proceedings or jurisdiction did not necessarily entail a physical transfer of J and that Judge Toale was entitled to conclude in light of the mutual trust which underpins the Regulation of 2003 and that J’s best interests would be applied by the courts of England and Wales on the basis of relevant evidence that there was not a high degree of uncertainty as to whether J’s placement with his foster carers would endure a transfer. He therefore refused the application for judicial review and released the stay and injunctions in respect of the transfer. On 18 April 2018 Mr Justice Keehan restored the transfer request for hearing on 23 May 2018. Self-evidently if the matter were determined on 23 May 2018 it was some 13 odd weeks since the request had been made and even allowing a discount from the 13 weeks for the stays granted in Ireland and in England the six-week time limit had been passed. On 14 May 2018 Mr Justice Cohen granted an extension of time for filing ‘succinct’ written submissions, which led to the parties, applying a very loose definition of succinct, filing the very extensive and detailed written documents that they did.

Having set out the background I turn now to my evaluation of the issues raised.

The CFA invited me to conclude that a reference under the PPU procedure was appropriate in this case. The other parties did not agree that such a reference was required albeit they all to some degree or another accepted that the determination of the case involved interpretation of Article 15. The power to make a reference to the CJEU is contained in Art. 267 of the Treaty of the Functioning of the European Union which sets out the circumstances in which a Preliminary Reference may be made to the CJEU

the interpretation of the Treaties;

The circumstances in which it is appropriate (or necessary) to make a Preliminary Reference were considered by the ECJ in Case C-283/81 - CILFIT v Ministero della Sanità:

“In the light of all those considerations, the answer to the question submitted by the Corte Suprema di Cassazione must be that the third paragraph of Article 177 of the EEC Treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”

The jurisdiction is therefore discretionary where there is a further domestic appeal available but mandatory where there is not.

I concluded that it was not necessary for me to make a reference to the CJEU because I reached the conclusion that I could interpret Article 15 having regard to fundamental principles, in particular Article 24 of the EU Charter of fundamental rights, in respect of which preamble 33 of BIIa states

Article 24.2 provides that

That right is not only a substantive right but also a procedural right and a fundamental interpretive principle and adopting that as an aid to interpretation of BIIa together with seeking to apply a purposive interpretation so as to give effect to the object of the Regulation I have concluded it is unnecessary to make a reference to the CJEU. I also consider that the delay that the making of such a reference would engender would be contrary to J’s best interests. Even if the CJEU were to accept the reference as a PPU case it is unlikely that a decision could be delivered by the court before the autumn and further delay for J would in my view be intolerable. By July of this year he will have been in foster care for some three years and it is unacceptable from his point of view for determination of his future to be further delayed. It is imperative giving he is approaching his third birthday that a decision as to his long-term future is now taken.

The relevant parts of BIIA are set out below

The European Commission Practice Guide on the application of the new Brussels II Regulation states in so far as is relevant

The domestic procedural rules for dealing with such requests are set out in FPR 12.66

The Art 15 power is an exception to the general rule of jurisdiction in Art 8 which is grounded in the habitual residence of the child. The power may only be exercised by the requesting court when all three questions can be answered in the affirmative. The Regulation envisages that the court with substantive jurisdiction will be responsible for the assessment of whether the criteria identified in Article 15(1) are met. The role of the receiving court is far more limited. That is hardly surprising given that in most cases proceedings will be underway in the requesting court, the parties will be participating and the court will have before it a significant amount of information. In contrast in most cases the receiving court will not even have a live application before it and thus there will be no parties to proceedings to participate in decision-making. In public law cases as outlined above the High Court has developed a court based process to enable consideration to be given both to the question of best interests but also to the practical implementation of the transfer if granted. The function of the receiving court in complying with BIIa, Art 15(5) is limited to determining whether it is in the best interests of the child to assume jurisdiction: Re L (A Child) [2016] EWCA Civ 821. The Court of Justice of the European union has confirmed that an important component in the best interests of a child is that the court best placed to determine the issues which arise should be the court which actually takes the decision: Povse-v-Alpago Case C-211/10 PPU).

Mr Vine QC on behalf of Flintshire submits that on its literal wording Article 15 (5) requires the transfer request to be dealt with within six weeks. He submits that if the request is not dealt with within six weeks of the court being seised that the court cannot accept the request. In support of this argument he makes a number of points. Firstly, he identifies that the six-week time limit is not subject to any qualification or extension in contrast to for instance Article 11 (3) which contemplates a six-week time limit being extendable where ‘exceptional circumstances make it impossible’ to determine the case within six weeks. He notes that Article 11(7) contains a time limit which does not say it is extendable and Article 33(5) includes time limits-although in this regard the last sentence of Article 33(5) provides that ‘no extension of time may be granted on account of distance’ which begs the question of whether it contemplates an extension of time may be granted on account of other facts. He notes that in Vigreux-v-Michel 2006 to FLR 1180 that Lord Justice Thorpe emphasised the binding nature of time limits in the Regulation and he observes that it is important given the application of the Regulation across the community of EU member states that a consistent approach is taken which supports a literal application of the six-week limit. Only that way can full effect be given to the provision. The use of the words shall indicate, says Mr Vine, that they are mandatory, in contrast to the discretionary ‘may’ in the first sentence of Article 15(5). Lastly Mr Vine refers to the principle that exceptions to a general rule should be construed narrowly: see paragraph 40 of in re N (Children) (Adoption: Jurisdiction) 2016 UKSC 15.

Mr Vine QC also points out that the word ‘otherwise’ at the beginning of the third sentence of Article 15(5) clearly demonstrates that a default position is identified in the event that the request is not accepted within six weeks. This, he submits, must mean that the Regulation contemplates that the court with substantive jurisdiction will resume the exercise of jurisdiction and by inference will continue so to exercise jurisdiction until the conclusion of the case. Mr Vine QC also referred me to the case of Christofi-v- The National Bank of Greece (Cyprus) Ltd [2018] EWCA Civ 413 where the Court of Appeal was called upon to determine whether the court had the power to extend time for appealing provided for in Article 43(5) of Council Regulation number 44/2001. At paragraph 64 of their judgment the Court of Appeal said

The court considered a number of decisions of the Court of Justice of the European Union where that court had considered time limits in relation to appeals. Mr Vine QC argued that the conclusions reached in the European cases and in the Christofi case both pointed to the conclusion that time limits identified in EU Regulations were not capable of being varied or extended unless explicitly provided for in the terms of the Regulation. It is clear both from the decisions of the European Court and of the Court of Appeal that in interpreting whether any particular time limit is to be strictly applied or maybe capable of extension that the underlying policy of the Regulation will be of critical relevance. I note that the particular Regulation considered in Christofi was more akin to the provisions of Article 34 of BIIa than Article 15(5) and also importantly as Mr Setright QC points out that it relates to a Regulation dealing with civil and commercial matters where different policy considerations will apply. Mr Vine also referred me to the Dublin III Regulation dealing with asylum cases. That Regulation contains within its Articles various different time limits some of which are expressly said to be extendable (Articles 22(6), 29(2)) others are expressly non-extendable (Article 28(3)). The Regulation in its preambles states that it respects fundamental rights including Article 24 of the EU Charter and that the Regulation should be applied accordingly and as Mr Setright QC points out the Regulation contains provision for extensions in relation to unaccompanied minors. Mr Vine QC points out that in the case C-670/16 (Mengesteab) the CJEU at paragraph 49 and 50 and in Case C-360/16 (Hassan) at paragraph 60 and 62 rejected arguments from the UK and the Commission that the time limits in Dublin III were procedural and not substantive and rejected the argument that a take charge request could be accepted outside the time limit if the requested member state was willing to take charge. However, the Dublin III Regulation is quite different to BIIA and provides safeguards to asylum seekers in the determination of claims. Different fundamental rights are engaged. BIIa ultimately is about the best interests of children. Sometimes the Regulation builds in best interests into its framework, sometimes best interests are identified as a particular consideration. I do not therefore gain any assistance from the CJEU’s approach to Dublin III. It is clear that time limits will be interpreted according to the purpose served by both the Regulation and the time limit itself. It appears from previous cases dealt within this court that a strict approach to the six-week time limit has not been taken. In Re LM [2013] EWHC 646 (Fam) the court was seized on 20 December 2012 but the request was not accepted until either the 13^th or 27^th of March 2013. In CFA v F [2018] EWHC 939 (Fam) Mr Justice Francis accepted a request on 12 April 2018, when the request was made on 27 February 2018. I note however in that case that a provisional acceptance had occurred immediately upon the courts of England and Wales being seized.

The thrust of Mr Setright QC’s case is that the court should not take an unduly technical or restrictive interpretation of the six-week time limit. Mr Setright QC submits that to do so would be to prioritise form over substance and that if the court is satisfied that acceptance of the request is in the best interests of the child the fact that the court does not accept the request within the six weeks should not result in a strikeout of the transfer request. He relies on what the President of the Family Division said in HJ (A Child) [2013] EWHC 1867 (Fam) where the President emphasised that the process is intended to be ‘a relatively simple and straightforward process’ and that ‘Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of BIIr and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process’. He notes that the court generally has a wide discretion on issues of case management and relief from time limits and/or sanctions in order to meet the overriding objective of doing justice to the particular case. He also notes that there is no activity in Ireland to resume the exercise of that court’s jurisdiction although a hearing took place last week simply to update the court on the progress of this application.

I have reached the conclusion that the time limit contained within Article 15(5) should not be strictly applied so as to prevent this court accepting a request outside the six-week limit. My reasons for so deciding are:

I therefore conclude that the court may accept this request for transfer notwithstanding that we are outside the time limit

Although Article 15(5) BIIa does not specifically state that the receiving state should determine its own evaluation of the best interests of the child, it is implicit in the Regulation and confirmed in Re LM that that it is the essential function of the receiving court. In Re LM above Mr Justice Cobb considered per curiam that if the receiving State disagreed with the requesting State’s determination in respect of particular connection or better placed the court could reasonably easily reach the conclusion that it was not in the best interests of the child to accept the request for transfer. However Mr Setright QC submits that that view, together with the view of the Supreme Court in Re N as to the components of best interests must now be viewed in the light of the decision of the Court of Justice of the European Union in CFA-v-JD (case C-428/15) [2017] 2 WLR 949 and that in consequence this court must not review the Irish court’s determination in respect of ‘better placed’ but must limit its evaluation to matters relating to the substantive welfare of J. Mr Vine QC in particular but also the other parties have submitted that the court is not so constrained and is able to take account of a broader range of factors in its evaluation of best interests. And so, I have had to consider what factors the court is entitled or obliged to consider when determining the best interests issue pursuant to Article 15(5).

In the CFA v JD case the court of justice said at paragraph 58 & 9

Given that the expression ‘best interests of the child’ is identical in Article 15(1) and Article 15(5) it seems probable that the Regulation contemplates that its meaning will broadly speaking be the same and that at least some of the same subject matter will be covered and fall to be considered by the requesting and the receiving state. I note that at paragraph 38 of Baroness Hale’s judgment in Re-N she identifies that the considerations applicable to the evaluation of best interests when relinquishing jurisdiction may be somewhat different from the considerations applicable when deciding whether to accept jurisdiction. The overall effect of the judgment of the Supreme Court in Re N, in particular paragraph 44, but having regard to the arguments set out from paragraphs 36 to 43 and the application of the test set out from paragraphs 45 to 51 make clear that the Supreme Court considered that the assessment of best interests could incorporate factors which were relevant to the better placed determination as well as pure welfare matters. I note for instance at paragraph 49 that Baroness Hale refers to the judge not having considered which court would be better placed to achieve the third outcome. In paragraph 44, Baroness Hale identifies that the factors relevant to deciding the question of whether a transfer is in the child’s best interests will vary according to the circumstances, it is impossible to be definitive, and there is no reason at all to exclude the impact upon the child welfare in the short or longer term of the transfer itself. Thus, the Supreme Court came to the conclusion that the evaluation of best interests was not to be fettered by a narrow interpretation; in that case the argument being that the court should only considering better placed arguments, but rather that the court should consider all matters which bore upon the evaluation of a child’s best interests in relation to the transfer. The Supreme Court were clear that best interests in this context involved a different evaluation to the best interests of a child on a substantive determination of the primary application.

Mr Setright QC argues that this approach must now be viewed in the light of the Court of Justice of the European Union decision in CFA-v-JD and indeed Mr Setright QC goes further and argues that the Supreme Court approach cannot be right in the light of the CJEU decision. The decision of the Court of Justice of the European Union in Child and Family Agency v JD (R intervening) (Case C 428/15), [2017] 2 WLR 949 deals with the interpretation of Article 15(1). It is important to note that the CJEU do not deal with the interpretation of best interests from the perspective of the requested state under Article 15(5) and so this decision like that of the Supreme Court in Re N is not strictly binding but is obviously of considerable interest and weight. The analysis of the CJEU in particular from paragraphs 55 through to 59 suggest that the three factors in Article 15(1) are separate and distinct. In determining whether a court is better placed to hear a case the CJEU said that

The wording of Article 15(5) whilst it uses the identical expression best interest of the child also refers to the courts of the other member state due to the specific circumstances of the case. Clearly the principal investigation into better placed and best interests will take place in the requesting state where all of the parties are able to participate. However, the mere existence of Article 15(5) contemplates that the requested state may reach an alternative view on the best interests question and that must it seems to me arise out of the potential for the requested state to have a different perspective on matters which bear upon the best interests of the child. Given that the requested state is likely to have less evidence about the material situation of the child it seems to me that the Regulation must contemplate that the requested state’s view of the procedural aspects of what a transfer of jurisdiction would involve insofar as they bear upon the best interests of the child must be a consideration that the requested state can take into account. If it appears to the requested state that the requesting state is under a misapprehension as to what the procedural consequences of a transfer would be in so far as how the proceedings would be dealt with in the requested state that it seems to me must be a matter that the requested state can take into account albeit in the best interests assessment. It seems to me that the fact that the CJEU identified best interests as primarily focusing on the material situation of the child within Article 15(1) does not preclude the requested court considering from its own perspective matters which might have fallen within the better placed assessment in the requesting state. To exclude such considerations would remove both the particular knowledge the requested state has of what it can do and results in a limited consideration of best interests which is not consistent with fundamental principles. It would seem that the receiving court cannot take into account differences in the substantive law; such as whether the court permits non-consensual adoption. I accept Mr Setright QC’s point that in bringing to bear its own perspective the receiving court must be careful not to undertake a review of the requesting state’s determination. That would be to go against the primary role ascribed to the requesting court and the principle of mutual trust which underpins the Regulation. An approach which is consistent with Article 3 UNCRC, Article 24 EU CFR and the decision of the Supreme Court in Re N and the decision of the CJEU leads me to conclude that the assessment of best interests under Article 15(5) should incorporate all procedural and material welfare matters which are capable of bearing on the best interests of the child.

It is clear from the judgment of Judge Toale that part of his assessment of the best interests of the child related to his conclusion that the Welsh court would be better placed to determine the factual background to the application. This is immediately apparent at paragraph 16 of the judgment given by Judge Toale on 6 December 2017 when he said

He then went on to consider the impact on J of a change in his interim placement and appears to have agreed with the submission that a transfer of jurisdiction would not be in J’s best interests if it required a change in his placement. Thus, a very significant component indeed the principal limb of the determination that it was in the child’s best interests for the Welsh court to assume jurisdiction was the Irish courts conclusion that the Welsh court was better placed to determine the matter. It is clear from the earlier judgment given on 6 October 2017 that Judge Toale concluded that the Welsh court was better placed because he said

I note also the Judge’s comments at paragraph 31 that ‘the evidence in relation to R and what happened to R is crucial in decision-making in respect of J’ and at paragraph 30 where he refers to the father being an essential witness. The particular issue which the judge is clearly referring to is whether R suffered his injuries at the hands of the mother or the father. The judge refers to not being entirely clear what case the mother presented in the UK and that it now appeared that the mother was contemplating that the perpetrator was the father. It seems clear from the judgment that Judge Toale contemplated that the English court would be able to consider the evidence of what happened to R and make findings which would impact upon the decision-making in relation to the father. At paragraph 31 the judge refers to the judgment of Birmingham J that ”often the best indication as to what is likely to happen in the future is to be found in what has happened in the past” it is also clear from paragraph 29 that the basis on which the proceedings in Ireland were brought was in respect of the apprehended risk arising by virtue of what had been found to have occurred in relation to R , which in short is that R suffered nonaccidental injuries in a closed pool of perpetrators of two, mother and D. Everything flows from that.’

This creates something of a dilemma as it seems clear that Judge Toale contemplated that the English court would be able to conduct an enquiry into what happened to R, including compelling the father to give evidence and considering documentary records which would be admissible in England but might not be in Ireland. However, that process has already been undertaken and a judgment at a final hearing has been given by His Honour Judge Gareth Jones who heard evidence between the 2 – 5 of February 2015. There is therefore a determination by the Welsh court of what happened to R and whether the father or the mother was responsible. Unless there was a basis for the Welsh court to reopen that decision, the Welsh court would not be embarking on hearing further evidence from the father, from the mother or considering the documentary evidence again. At present applying the approach set out in In re Z (Children)(Care Proceedings: Review of Findings) Practice Note [2015] 1 WLR 95 I can see no basis upon which the Welsh court could be invited to reopen its previous decision. I assume that for procedural or other reasons that the Irish courts would not regard themselves as bound by those findings in the Welsh court, even under the automatic recognition provisions under Article 21 (4) BIIa. I also assume that the Irish court concluded that the Taking of Evidence Regulation 1206/2001 could not resolve the issues over witnesses or documents.

Mr Setright QC has submitted that it was within the contemplation of the Irish judgment that no fact-finding would take place and that there would be a consideration of whether there was any ground for reopening the earlier conclusions and if not, the case would proceed on the basis simply of the findings rather than a re-assessment of the evidence. I find that submission hard to accept given the observations in paragraph 28 where Judge Toale refers to there being a mass of potentially contestable evidence and that there is nothing to indicate that it would not be contested. He refers to having read the judgment of His Honour Judge Gareth Jones in order to get a feel for the amount of evidence. Although Judge Toale refers to the judgment and what had been found to have occurred it appears that he contemplated the issue being re-examined or re-determined within the proceedings relating to J. I think the core conclusion of the Irish court was that the Welsh court was better placed to determine what happened to R and thus to lay the foundations for considerations of risk to J.

Mr Vine QC submitted that if there had been a real misapprehension as to the process that would be adopted in Wales that this court should take it into account in determining J’s best interests. In this case a fundamental misapprehension as to the procedure, going to the heart of what Judge Toale thought would happen, says Mr Vine ought to lead to the conclusion that J’s best interests are not served by the transfer. Alternatively, Mr Vine QC suggested that at least the court should consider seeking clarification of what the Irish court contemplated would happen. I have considered whether I ought to either ask questions through the medium of the Office of the Head of International Family Justice to clarify matters of Irish law which might then shed more light on Judge Toale’s decisions. I have also considered whether I ought to ask for clarification directly from Judge Toale as to the reasons why the judgment of His Honour Judge Gareth Jones would not be regarded as recognisable in Ireland and whether he was aware that the Welsh court would not carry out a further evidence based hearing but would simply reaffirm its earlier decision. Having considered the already extensive delay in determining this Article 15 transfer request which is intended to be a summary and simple process and the mutual trust that underpins the Regulation I have reached the conclusion that making such further enquiries would simply engender further delay both in securing answers which might require further hearings in Ireland and in securing a relisting before me, which might not be possible before October. As both parties indicated that an appeal from my decision was possible, issues of clarification or judicial liaison might best be undertaken during an appellate process. Mr Vine QC also submitted that as Article 15 is an exception to the primary rule of jurisdiction of habitual residence that the approach to best interests and more generally to Article 15 is that the court should interpret it strictly because the starting point in the Regulation is that the courts of the Member State most approximate to the child should determine a child’s future. I note however that the Irish court concluded that J was not habitually resident in Ireland by July 2016 and that jurisdiction was established on the basis of his presence. Whilst I accept that as an exception, Article 15 should be interpreted strictly, it should be noted that this is an exception which expressly incorporates an evaluation of best interests.

The heart of Judge Toale’s decision is that he plainly considered that there would be real difficulties in the Irish court undertaking that determination and although it does not emerge completely clearly from the judgment why that is so to the English and Welsh eye it plainly was very clear to Judge Toale and to the advocates representing the parties in those proceedings. I have no reason to disagree with that conclusion, indeed the Irish court is plainly better placed to assess its ability to determine the underlying factual dispute and for this court to disagree with that would be to go against the principle of mutual trust. Although the reasons why the Irish court considered the Welsh court would be better placed might be somewhat different from the Welsh perspective, the fundamental point is that for whatever reason the courts of Wales are better placed to determine those factual matters and it is in J’s best interests for the better placed court to determine his future. That it seems to me as a very significant component in any assessment of best interests.

Mr Vine QC also submits that the statutory framework set out in English and Welsh law cannot accommodate a transfer of care proceedings, nor can it allow for J to remain with his Irish foster carers whilst subject to interim care orders in Wales. It is submitted that if the effect of a transfer is to place J into a jurisdictional vacuum where no proceedings can take place in Wales and where, even if they can, his foster placement will have to change that those considerations go to the question of whether the Welsh court is better placed to hear proceedings and thus whether it is in J’s best interests for proceedings to be transferred.

Mr Vine QC’s argument rests on the assertion that the court has no jurisdiction to make a care order in the absence of a application by a local authority under section 31 of the Children Act 1989. He points out the limited powers of the court to require a local authority to take proceedings. He submits that the court’s power under section 37 of the Children Act 1989 to direct a local authority investigation of a child’s circumstances arise only in ‘family proceedings’ as defined by section 8(3) of the Children Act 1989 which does not include proceedings under the Council Regulation. Thus he says the power to make an interim care order under section 38 of the Children Act 1989 at the same time as directing a section 37 investigation is not available to the court. I do not agree with this submission. If this court were to accept a transfer of the case, or of jurisdiction, this court’s jurisdiction is not solely grounded in an application under the Council Regulation. All such applications are to be heard by the High Court and the High Court then also has available to it the inherent jurisdiction in relation to children. The inherent jurisdiction is part of the common law and is the’ great safety net’ which lies behind all statute law and is capable of filling gaps left by that law if and in so far as those gaps have to be filled in the interests of society as a whole’: Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at p 30. See also, A v Liverpool City Council [1982] AC 363 at p 373.

In Re Z (recognition of foreign order) [2016] EWHC 784 (Fam), [2016] Fam Law 684.Mr Justice Jonathan Baker used the inherent jurisdiction to fill in a gap in the statutory scheme arising in a case where jurisdiction and a vulnerable teenager were being transferred from Ireland to England. The effect of Mr Vine QC submission if accepted would be that the court could not accept a transfer of proceedings because the CFA could not be the applicant in proceedings in Wales (they are not authorised persons for the purposes of a non-local authority application) and that no local authority would bring, or could be compelled to bring, new proceedings under the transferred jurisdiction. That would run flatly counter to the purposes of BIIa and would indeed create a jurisdictional vacuum. The fact that the parties to the case may be different in the Member State to which the application is transferred does not preclude transfer: Child and Family Agency v JD [2016] Case-C-428/15, 27 October 2015, CJEU [2017] 1 FLR 223. If Mr Vine QC was right and that were the effect of domestic legislation interpreted literally I’m not at all sure that it could be so interpreted consistent with this court’s duty to pursue the purposes of the Regulation which has direct effect and to interpret the Regulation and domestic law purposively and consistently with the best interests of the child as a fundamental right under Article 24 of the EU Charter of Fundamental Rights. As it happens I do not need to definitively determine the point because there is clearly an alternative route to care proceedings. FPR 12.66 provides for the court to allocate it as it would a domestic case. I’m prepared to allocate it to the High Court. The court exercising the inherent jurisdiction which does fall within the definition of ‘family proceedings’ within section 8(3) may order an enquiry pursuant to section 37 and make an interim care order under section 38. The provisions of section 37(5) then applied to identify the local authority to whom the direction to carry out an investigation applies. This will be the local authority in whose area the child is ordinarily resident or the authority within whose area any circumstances arose in consequence of which the direction is being given. In this case the circumstances of the injury to R and the earlier court proceedings are the basis upon which the transfer is taking place and thus the basis upon which a direction is being made to Flintshire.

Turning then to more substantive welfare considerations. What are my conclusions on the impact on J of this court accepting the request in terms of its impact on his material situation? Mr Vine QC submits that the fact that J has lived in Ireland for nearly three years in itself lends considerable weight and significance to it being in his best interests for Ireland to determine the case. All the evidence about J himself and his mother since 2015 is in Ireland. J himself is settled in Ireland. All the evidence suggests that it would be harmful to him for his foster placement to be altered save in the implementation of a final care plan. It seems to me in terms of the evidence relating to J that, ideally, it would be the Irish court to undertake that part of the case. However, the Irish court considered but rejected the idea of a part transfer and so that option is not on the table. The Irish court also concluded that the evidence in relation to J and the assessment of his welfare could appropriately be undertaken by a Welsh court. I agree. The courts of England and Wales are now well accustomed to dealing with children residing out of the jurisdiction, with assessments by social workers or other professionals from other countries or obtaining its own assessments in relation to family members or children abroad.

At the heart of this issue lies the question of whether J’s foster placement can be maintained. Mr Vine QC submits that J’s foster carers are not approved foster carers for the purposes of Chapter 2 of the Care Planning, Placement and Case Review (Wales) Regulations 2015 and Flintshire could not yet place J with them under those Regulations. Likewise, he says Flintshire could not yet comply with the statutory requirements for placing with carers outside of England and Wales under Regulation 13 and section 124 of the Social Services and Well-Being (Wales) Act 2014. He says there is thus a statutory or regulatory bar on Flintshire maintaining J’s foster placement in Ireland if an interim care order was made. Mr Setright QC submits that this is to adopt an unduly technical approach to this situation. He observes that in the case of CFA v F [2018] EWHC 939 (Fam), Justice Francis approved a transfer where the child was to remain in Ireland and the local authority in that case were able to approve the child’s continued placement with foster carers in Ireland. Ms Carew too on behalf of J has pointed out that the provisions of Regulation 26 of the Foster Care Regulations (or their Welsh equivalent) allow for placement with family or friends for up to 16 weeks without approval. She also points out that the evidence at F427 shows that the Irish foster carers are very committed to J and are highly likely to weather any turbulence which accompanies a transfer of jurisdiction. She submits that notwithstanding the regulatory restrictions, which Flintshire undoubtedly must operate within, there are ways in which J could remain in Irish foster care consistent with Flintshire’s statutory duties.

Mr Vine QC goes on to submit that even if the placement is vires that the Irish foster carers may decline to continue to care for J under the terms of a Welsh foster placement. For instance, Mr Vine QC points out that they are currently paid €320 per week whereas Flintshire is rate is £175 per week. They may be dissatisfied with having to deal with a Welsh social worker who is not available on the ground. They may be worried about the security of J and his placement with them, particularly vis-a-vis the mother, when it is not an Irish order which is governing the position. To the latter point Mr Setright QC observes that in previous cases it has been possible to register an English interim care order in the Irish court and to secure recognition and enforcement of the order through that route which will provide identical security to an Irish order. Mr Vine QC says that whatever happens there is likely to be a period when there will be uncertainty as to the legal framework applying to J and that the use of Article 20 BIIAa powers in Ireland is an unsatisfactory means to secure his welfare. Mr Setright QC points out that the powers under Article 20 BIIa taken together with the powers under Articles 11 and 12 of the 1996 Hague Child Protection Regulation are capable of providing urgent necessary provisional protections whilst the transition from Irish to Welsh law takes place. He submits that the points raised by Mr Vine are really strawmen, or illustrate an ultra-cautious approach which is unlikely to create any difficulty in reality.

Whilst I accept that from Flintshire’s perspective having to take on J as a child in their care whilst he is placed with foster carers who have not been approved by them and when he will remain in Ireland probably for the duration of any proceedings in Wales is far from ideal, I do not accept that there is a complete statutory or regulatory bar to that occurring. As I observed during the course of the hearing this is a most unsatisfactory position from Flintshire’s perspective. Had the case been transferred shortly after J was born, as occurs in most of these sorts of cases, J would have returned to Wales with the case. It is only as a result of the extraordinary passage of time in this case that J’s best interests are clearly best served by remaining with his current foster carers and thus by not returning to Wales with the case. Flintshire are thus being expected to take on a child and a case with whom they have had no dealings throughout his three years and throughout the two years of litigation. I entirely understand their reservations and sympathise with them. I also entirely understand the approach they have adopted in these proceedings and the points they have taken in relation to the statutory and regulatory difficulties that a transfer of jurisdiction and the making of an interim care order in these circumstances give rise to. The courts of England and Wales have consistently said that such applications should be considered at the earliest possible stage: In the matter of CB (a child) [2015] EWCA Civ 888 at 84(ii); and In re E (a child) (care proceedings: European dimension) (Practice Note) [2014] EWHC 6 (Fam), [2014] 2 FLR 151 at 31 and 35–36; Re T (Brussels II Revised, Art 15) [2013] EWCA Civ 895, [2014] 1 FLR 749; Leicester City Council v S [2014] EWHC 1575 (Fam), [2015] 1 FLR 1182 at para 9. However ultimately the issue relates to the best interests of a near three-year-old and I’m satisfied that Welsh domestic law will permit both the issuing of proceedings but also the placement of J with his Irish foster carers pending approval of them by Flintshire. Ms Carew noted that given they have been approved under Irish Regulations it is likely that they will be approved under Welsh Regulations; particularly if comity truly extends beyond judicial proceedings but also to social services matters. To the extent that there were to be any ‘gap’ I’m satisfied that the inherent jurisdiction could provide infill and that it would not be trespassing on any statutory scheme; this being a highly unusual cross-border situation which was probably not contemplated within the Regulations. I therefore find myself in agreement with judge Toale that it is unlikely that J’s placement with his Irish foster carers would be disrupted as a result of operation of law until such time as the Welsh court took a final welfare decision.

My only reservation in relation to J’s best interests is whether in fact his Irish foster carers are as dedicated to the maintenance of the placement as they say and whether between Flintshire and the CFA they can construct an agreement which will ensure that the placement endures. Mr Setright QC told me in the course of the hearing that the CFA would guarantee to meet any shortfall in the remuneration the foster carers currently received as compared to what they may receive when Flintshire takeover.

Ms Carew on behalf of J also invited me to accept the transfer in order to bring matters to as swift a conclusion for J as possible. She noted that if the transfer request were declined it would result in the Irish court having to resume the case and to seek to determine it on an unsatisfactory evidential basis. It would mean revisiting potentially the issue of a partial transfer request for the Welsh court to determine fact-finding whilst preserving the welfare decision to the Irish court. It might result in the Irish court making a request under the Taking of Evidence Regulation either in respect of R’s father or in respect of the documents. In any event the CFA had provided information that the final conclusion of any proceedings relating to J would be unlikely to take place before January 2019. In contrast were the request to be accepted under the 26-week time frame for care proceedings in Wales a determination would be likely in 2018. Ms Carew observed that the evidence in relation to the welfare determinations would be deployed in the Welsh proceedings and thus it could be expected that the proceedings might take substantially less than 26 weeks.

Having regard to all of these matters I’m satisfied on a provisional basis that it is in J’s best interests to accept the request. It will serve his best interests in that it will ensure that his future is determined on the best available evidence in respect of the threshold (it will add value) and it will not disrupt his placement until final determination of the proceedings. It is not therefore likely to be detrimental to his welfare. I am making this decision on a provisional basis and making an order nisi for the acceptance of the request only because I require confirmation that practical arrangements can be put in place to ensure that J’s Irish foster carers are secured for the duration of any Welsh proceedings. I will adjourn the final acceptance until 26 June so that Flintshire and the CFA can liaise in respect of those arrangements. Given the nature of the case I will allocate it to High Court judge level and reserve it to myself whilst making a section 37 direction to Flintshire and making an interim care order on the next occasion.

That is my decision.