CFA (Ireland) v F

On 27 February this year, MacDonald J made an order following an Article 15 transfer request by the Republic of Ireland in connection with F, a girl born in late 2017.

He made an order that the request that was made by Ireland is accepted save and to the extent that it is necessary that the Irish courts retain jurisdiction over F for the purposes of effecting her physical transfer into the jurisdiction of England and Wales. He then said by paragraph 4 of that order that there be liberty to the mother, and the father, if so advised to make representations as to why the said transfer should not take place. Then he gave directions for the making of those representations. For reasons which are not relevant to the decision that I have now got to make, the timetable slipped a little, but the parents have now each of them made comprehensive written representations which I read before this case started.

I should say straightaway that yesterday when this case first came before me (incidentally listed only for an hour which was eternally optimistic as it has taken, frankly, a full day if one adds together the various times that we have spent on it) it looked as if the parents might have been about to appear tomorrow in the court in Ireland in connection with this case -possibly an appeal to a higher court against the decision which had been made in Ireland. I allowed time for counsel respectively for the mother and the father to take instructions about the possibility of them being in court in Ireland tomorrow, because it seemed to me that if there were to be applications heard tomorrow in Ireland, there would be some benefit in me putting this case off for a few days, possibly next week.

These transfer requests by definition have to be dealt with very quickly and I was anxious to comply with the timetable, but it seemed to me that the slippage of a few days would have been entirely acceptable in the context of this case. However, on closer analysis, and I make no criticism of anybody because instructions have had to be taken quickly and over the telephone, it transpires that the indication that there was to a hearing tomorrow arose from a mistake. Apparently, there may have been another case listed with the same name, but not this case. In fact, no date has been fixed for any application by the parents in Ireland and, indeed, I am not even clear what (if any) application the parents have made in Ireland.

It seemed to me that in the context of there being no fixed date, it was not appropriate to adjourn this transfer request and I did not do so. However, by the time we had finished the adjournment application yesterday, there was a lot of other business that I needed to deal with and it did not seem to me to be appropriate to start this case effectively at about quarter to five yesterday. So, instead, we adjourned it until today and I am grateful to all counsel for coming back today and to the court staff for allowing me to sit late to deal with it now.

Effectively then, MacDonald J made what we have referred to as an order nisi, that is an order unless the parents made representations. As I have said, they have made representations and I have heard detailed argument about them. The mother has been represented yesterday and today by Mr Dorian Day of counsel, the father by Ms Susan Pyle of counsel, and I am grateful to them for all of the submissions that they have made.

The local authority has attended court with the consent of all parties and, of course, myself. Their involvement is as follows: the parents have another child and for reasons which I need not go into for the purposes of this judgment, a care order was made in respect of that child, the care proceedings having been brought by the local authority. That child was, in due course, placed for adoption and is now with a family in a location that is unknown to the parents and indeed unknown to me as well. The involvement of the local authority is therefore material and it seemed to me as they had been good enough to send their representative, Mr Taylor, to court, it was only right that I should allow him to stay and to make such representations as he thought appropriate and I have been assisted by them.

The position in Ireland is that the parents travelled to Ireland when they knew that the mother was pregnant with F. It seems that they admitted at some point to the guardian in Ireland that they did this to escape the clutches, if I can call it that, of the local authority or of the local authorities in this country. That is a matter of factual background. It is not in any way relevant to any determination that I make today and I certainly do not, as it were, hold it as a black mark against them for the purposes of the relatively limited issue that is before me today.

The matter came before Judge O’Leary in Ireland on 8 January and she made the Article 15 request on that date. That was an order of a district court in Ireland and in accordance with their rights of appeal in Ireland, the parents appealed that decision and it came before HHJ Donnabháin on 6 February 2018. I have a copy his judgment which is dated 6February. It contains some rather important material and I am just going to quote limited parts of that judgment.

In paragraph 2, the judge said:

“In my view, this child has and does possess a UK nationality and identity.”

In paragraph 5 he said:

“The evidence in relation to the child is such that she is well placed in foster care at the moment and the court is very slow to interfere with that placement but because of her nationality, and because of her particular connection with the UK which arises from the mother’s background, any application in relation to the welfare or the upbringing of this child requires close attention to be given to the background and circumstances, particularly of her mother... This lady’s background [by which he means the mother] is extremely complicated and requires the fullest access to all the medical, psychiatric, and social work reports which exist. These reports can only be ultimately relied upon to be produced in the United Kingdom and they are of fundamental importance to informing any court decision regarding the child’s welfare.”

Later he said in paragraph 6 about the background:

“This cannot, in my opinion, be done in this jurisdiction. Therefore, the court better placed to deal with these matters is undoubtedly the court of the United Kingdom and Wales.”

I should say that it is obvious to me from the background that I have read about this case that the mother is entitled to the court’s greatest sympathy and understanding for she has had, it is undoubtedly true, an extremely difficult, troubled, and traumatic time. I need say no more about that for the purposes of this judgment but it is important to her that she knows that it is acknowledged by me when giving this judgment.

The position therefore is that the Irish court has at district level and then on appeal come to a very clear and fully reasoned decision as to why it has made its article 15 request. Turning to the provisions of Article 15, Article 15(1) provides:

“By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)

stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4

(b)

request a court of another Member State to assume jurisdiction in accordance with paragraph 5.”

Mr Setright QC who is instructed by the Child and Family Agency of Ireland reminds me that the heading of that provision is “Transfer to a court better placed to hear the case”. The Irish court, as I have said, determined that England would be better placed to hear the case and that this is in the interests of the child.

Article 15, paragraph 5 provides as follows:

“The courts of that other Member State [and of course by that, in this case, it means England and Wales] may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.”

My task, of course, is to consider whether that other member state, that is England, should accept the Article 15 request that has been made and I have regard therefore to the provisions of Article 15(5) when so considering.

My attention has been drawn to the observation of the President of the Family Division in Re HJ (A Child) [2013] EWHC 1867 (Fam) when he said as follows:

“I add one thing. As Cobb J has explained, the function of the court of the requested state in a case such as this is fairly limited. Moreover, it is highly undesirable as a matter of general principle that unnecessary delay should be permitted in what is intended to be a relatively simple and straight forward process under Article 15(5). 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. After all, too ready a willingness on the part of the court to go into the full merits of the case at this preliminary stage can only be destructive of the system enshrined in BIIr and lead to the protracted and costly battles over jurisdiction which it is the very purpose of BIIr to avoid.”

I note that therefore this is a summary process, albeit that we have had detailed argument. It is important that the parents understand that whatever decision I make today, the decision that really matters is the decision that will be made in due course by a different court at a different time.

My attention has been drawn to the decision of the European Court in a case called C-428/15 – D. In that case, which of course binds me, the cross-check is rather more limited than we would expect having regard to the ordinary use of language and our understanding of best interests. In paragraphs 58 and 59, the court said:

“58

Third and last, the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned.

59

To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation.”

As I have said, the Irish courts have made that assessment and have obviously assessed not only that transfer would not be liable to be detrimental to the child but have actually assessed that the transfer would be positively beneficial.

When I look at the provisions of Article 15(5), the same words “best interests of the child” appear as appear in Article 15(1). It seems to me an inevitable matter of obvious construction that I should apply the same meaning to the words “best interests of the child” as they appear in Article 15(5) as was applied to them in Article 15(1) in the European case to which I have just referred. However, I make it clear that, in fact, I am completely clear about what the decision should be in this case and my decision is not only based on the limited language “not liable to be detrimental” but actually positive “best interests”.

It is important that I turn now to deal with the representations that have been made comprehensively by Mr Day on behalf of the mother and by Ms Pyle on behalf of the father. I should say that Ms Pyle’s submissions were more limited not because she had any weaker or different case but simply because she was able to adopt the robust submissions that were made by Mr Day on behalf of the mother.

The parents first of all tell me that they are settled in Ireland. I do not doubt that that is true. They say that they want to be assessed there. It seems to me that whether this case is heard by the courts in England or the courts in Ireland, they can be assessed there. It is not at all unusual for parents to be assessed in their home country. It may be that they be assessed there. It may be that they be assessed in England if this case is heard by England, but I do not see that feature as being in any way determinative and still less that I see it as being something that would be contrary to best interests in the way that they are defined above.

It is advanced on behalf of the parents that for F to come to England, which it is thought would be an inevitable consequence of a transfer being accepted, would interfere with their contact arrangements. This, it seems to me, is rather an important issue. If I were to accept the transfer, it would be usual for the child to be transferred, if I can use that language, to the country as well. In fact, I am told that no one is able to point to any reported case where that has not happened. However, there would be nothing wrong at all, it seems to me, in F’s current foster parents bringing her to England, if I were to accept the transfer, for the purposes of the interim care application which would inevitably follow and be made by the local authority. The judge hearing that interim care application could perfectly easily decide to place F in the interim care of her current foster carers in Ireland. There is nothing particularly unusual about that. Indeed, Schedule 2 of the Children Act 1989 specifically provides for such placement.

This is important because I would be concerned about any change of F’s interim arrangements. What happens to her long-term is something that none of us knows and is yet to be determined, but it seems to me that it will be a powerful factor in favour of leaving this case in Ireland if the consequence of a transfer would be to interfere with her interim arrangements. Indeed, this was a point specifically identified by the Irish guardian and my attention has been specifically drawn to it by counsel both for the mother and the father.

In the report of the guardian ad litem, as the title still is in Ireland, of Caroline Shore dated 2 February 2018, she says this at paragraph 3.10:

“[F]’s carers are approved for long-term care and available to her for as long as she requires them. To move her now to interim foster carers with a view to a future move to permanent carers, whether a return to her birth parents or otherwise, at the end of child care proceedings runs contrary to her primary needs and best interests.”

I respectfully agree with that paragraph. I am not saying that it would mean that there could not ever be a change of interim care, but it seems to me that a change of interim care is almost always to be avoided in these cases if the interim care is satisfactory. As far as I can see here, it is not just satisfactory but extremely good interim care that F is currently enjoying. However, there is no reason for me to think that the acceptance of a transfer request would alter the possibility of F continuing to be with her Irish foster carers.

It was submitted to me by Mr Day that it would be in some way troublesome, difficult, or contrary to her best interests for F to travel to England with her foster carers. I do not accept that the short flight from Ireland to England would in any way be contrary to the best interests of a child of, I suppose by then, I do not know, anything in the region of 7 to 10 months old. It is not at all unusual for babies of that age to go away for a couple of days with their carers or parents as the case may be and I have no reason to think that it will be a difficulty for her to do that. It seems to me that if I were to accept the request, she would come to court, possibly to London in the first place, in fact, rather than to the Court in the local authority’s area, but again the same point applies about the flights, with her foster carers and then a decision would be made. It is not for me now to indicate what that decision might be because the circumstances may very well be different and there will doubtless be further information before the court.

Dealing with the question of whether accepting the Article 15 request would interfere with contact, the parents are currently enjoying contact with F and should, of course, continue to do so if at all possible and in so far as it is in her best interests. It plainly has been determined that it is in her best interests at the moment to have that contact. If F is living with her foster carers in Ireland, then it is no different from the current situation whether the Irish courts or the English courts are in charge of this case.

If F was living in England, then it is of course entirely possible and feasible for the parents to travel to England to see her. My understanding is that if it is not financially possible for them to do that, that very often in these cases, at least on a short-term basis, measures are put in place to assist them with that travelling. I bear in mind and repeat that these are English parents and as I said, they lived in England until the mother was pregnant with F.

Not only have none of the points put forward by counsel respectively for the mother and the father, with the greatest respect to them and they have said everything that they could possibly have said on behalf of their clients, but not only do none of those points actually support the parents’ case, they militate against it.

I am completely satisfied that it is in F’s best interests for this case to be transferred to England. Moreover, the principles of comity require that I should have very considerable respect and regard for the Irish order, which I do, albeit that I am of course not bound to accept the request. However, having applied, I hope properly, the test which is set out in Article 15(5) and its interpretation by recent case law, I am completely satisfied that this court should accept the request and I now do so.