E v The Child and Family Agency of Ireland & Ors

I am concerned with E, who is a 16-year-old young person, who seeks to appeal the recognition and enforcement of an Irish Special Care Order, pursuant to Article 23, the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. I set the title out in full given the issues in focus but will refer to it hereafter as the 1996 Hague Convention. The Recognition Order was made by DJ Jenkins, sitting as a District Judge in the Principal Registry of the Family Division. The Order dated 26^th March 2024, both registered and permitted the enforcement of a Special Care Order, made in respect of E, by Mr Justice Jordan, High Court in Ireland. That order was made on 22^nd February 2024. On 16^th May 2024, a further Special Care Order was made by Mr Justice Jordan. That order was subject to recognition, registration and enforcement orders made by DJ Jenkins, again sitting as a District Judge of the Principal Registry of the Family Division, on 30^th May 2024

The impact of the order, in Ireland, is to authorise E’s detention in a special care unit; authorise E’s release for the purposes specified in the order; to enable the Child and Family Agency of Ireland (CFA) to request that the Garda locate E and deliver him to their custody at the Special Care unit should he abscond or be otherwise removed from it. Finally, the CFA are authorised to seek the assistance of the Garda when accompanying and transporting E to and from appointments away from the special care unit.

An “appeal” pursuant to Article 23 of the Convention, as it is known in domestic English terms, see FPR Part 31, is not an “appeal” in the sense that we would ordinarily recognise. It does not require this court to evaluate whether the decision was ‘wrong’ or ‘flawed’ due to a procedural or other irregularity. For the sake of completeness, I should add that it does not require a preliminary application for permission, it lies as of right.

In support of the Appellant’s notice, grounds of appeal were lodged within which it was indicated that E sought to challenge registration and enforcement of the Irish order. The premises for which are:

The assertion that the order was made without E having been provided with the opportunity to be heard is, rightly in my view, no longer pursued. In their skeleton argument, Mr Gration KC and Mr Basi, Counsel on behalf of E, explain, in some detail, why that ground was included at the time when the appellant’s notice was lodged and why it has subsequently been abandoned. It is unnecessary for me to rehearse their reasoning in this judgment, suffice it to say that the appeal is now advanced on the second ground alone. It is important to make the point that central to this appeal is the importance to giving effect to E’s wishes and feelings and his entrenched and voluble resistance to returning to Ireland.

Chapter IV of the 1996 Hague Convention provides, in so far as is relevant, as follows:

As is clear above, Article 23 provides that recognition “may” be refused if one of the Article 23(2) grounds is established. The sole ground relied upon here is that of paragraph (d) i.e., the recognition of the order would be manifestly contrary to the public policy. To this end, Mr Gration submits that I should approach the issue in this way and ask myself the following questions:

Article 23(2)(d) of the 1996 Hague Convention is drafted in broadly similar terms to Article 23 of BIIa, and Article 24 of the 1993 Hague Adoption Convention. Counsel have unearthed relatively few authorities that consider this provision under the three Conventions; and even fewer under the 1996 Convention alone. Both agree that it is constructive to consider the application of the same provision under BIIa and the 1993 Hague Adoption Convention when considering how Art.23(2)(d) of the 1996 Hague Convention should be applied. As Mr Gration correctly says, whilst there is broad agreement on the route map, he and Mr Setright, arrive at wholly different destinations.

Whilst it is necessary for me to consider something of this comparative exercise, I do not consider it is necessary to do so extensively. Ultimately, the question in focus is whether it is contrary to the public policy of England and Wales for E to be returned to Ireland, against his expressed wishes and to be placed until a Special Care bed becomes available for him there.

I have been referred to the Lagarde Explanatory Report on the 1996 Hague Convention which provides the following, rather sparse, explanation of Art. 23(2)(d):

I am not sure that the word “manifest” adds a great deal to the essential issue, i.e., incompatibility with the public policy of the requested state. The Practical Handbook on the Operation of the 1996 Hague Convention provides some assistance:

What emerges is that the wording of Art. 23(2)(d) was drafted with the intention of reflecting the same restrictive approach as the 1993 Hague Adoption Convention. The wording of Art. 23 (2)(d) of the 1996 Convention is, in effect, a direct transposition of Art. 24 of the 1993 Hague Adoption Convention.

The Parra-Aranguren Explanatory Report in respect of the Hague Adoption Convention provides as follows in relation to the drafting of the 1993 Convention and the genesis of the public policy ground for non-recognition. In their characteristically helpful skeleton, Mr Setright KC and Mr Langford have highlighted paragraph 426, I adopt their emphasis below:

Mr Setright submits that the inclusion of “…taking into account the best interests of the child” phrase in Art. 23(2)(d) of the 1996 Hague Convention definitively does not require the court cumulatively to assess (i) incompatibility with English public policy; and (ii) the best interests of the child. It is, he contends, a single test. Mr Gration KC disagrees, for reasons that I will discuss below.

Thus, the test to be applied on this appeal, under Art. 23 of the 1996 Hague Convention is “very restrictive”. This, it is contended, is of significant reldce, where E’s primary challenge to the Irish order is that it conflicts with his own notion of where his best interests lie, inevitably recognising that this is not shared by any professional in Ireland or England and Wales. Nor, it must be said, is it a view reflected by any of the professionals involved in these proceedings. It derives it is advanced on the basis that what E says should be recognised and given direct effect, predicated on his age and asserted degree of maturity. With respect to Mr Gration, the fragility of the foundation for this submission is apparent.

Thorpe LJ in Re L (A Child) (Recognition of Foreign Order) [2012] EWCA Civ 1157, [2013] 2 WLR 152, sub nom Re L (Brussels II Revised: Appeal) [2013] 1 FLR 430 at paragraph 86, noted that there was a complete absence of case law on this point and extrapolated that this fact, in itself, indicated the exceptional circumstances in which an apparently valid or unimpeachable judgment would be rejected on the grounds of public policy:

In K v K & Ors [2021] EWHC 1846 (Fam), a public policy argument did succeed. Cobb J reviewed the position in relation to Art. 23 BIIA:

The facts of the case before Cobb J in K v K could not have been clearer. He was being asked to recognise and enforce an order of a Member State which was in direct conflict with a finding of the High Court of England and Wales that an Article 13(b) 1980 Hague exception had been made out. Furthermore, there was a subsequent order, by the same Member State, effectively confirming the conclusion of the English court. The order being sought was, on the face of it, irrational and, within its context, manifestly contrary to public policy. It is interesting to note that Cobb J also referred (obiter) to the, also obiter remarks, in the judgment of Holman J in Re S (Brussels II: Recognition: Best Interests of Child) (No.1) [2003] EWHC 2115 (Fam); [2004] 1 FLR 571:

As is clear above, whilst Cobb J was also prepared to contemplate a situation in which an order of the foreign court was so manifestly inconsistent with the welfare of the subject child that it might be contrary to domestic public policy, he was sceptical as to whether a finding of an Article 13(b) exception, in the domestic court, would “on its own” have established the requisite test.

In the High Court in Ireland, it was contended, on behalf of E, to Mr Justice Jordan, that E would not be safe in the care of the CFA. That court was also faced with a dilemma all too familiar to this jurisdiction, namely that no appropriate placement was available for E and there was no indication of a date by which one might become available. All that was possible is what Mr Gration refers to as “stopgap” provision. Nonetheless, Jordan J felt obliged to make the Special Care Order. I have been provided with a transcript of this hearing and as was discussed with Mr Setright in the course of exchanges, the efforts of the Judge to focus on the need for a placement and press for a timescale exactly reflect the approach of the Judiciary in England and Wales. Indeed, so striking was the similarity that I considered that Counsel and the Judge’s names could have been exchanged for mine and Counsel in this case without detection. The process is identical and the discomfort of the Judge reflects my own and all other Judges who face this situation.

Prior to the availability of the transcript of Jordan J’s judgment, an obviously accurate note was made from which Mr Setright and Mr Langford were able to distil the following conveniently expressed points:

The full transcript bears out the accuracy of this summary. It is plain that Mr Justice Jordan considered that E’s best interests lay in his being returned to Ireland, to be placed in the interim non-special care placement that has been identified for him pending the availability of a special care bed. In Re T (A Child) [2021] UKSC 35, Lady Black stated, at paragraph 145:

Here in England, the accommodation arranged by the Local Authority is itself a crisis placement. E has been unable consistently to cooperate with it and there are allegations of challenging behaviour and absconsion. I agree with the observations of Mr Justice Jordan that the position for E in the UK is itself properly characterised as “high risk”. I also recognise the description of E presenting as “an intelligent, insightful and articulate young man”. He has conducted himself, at the hearing before me, with poise, charm and good manners. I too have found him to be articulate but, like Jordan J, I recognise from the papers that there is another side to his personality which is considerably removed from my own experience of him. I am also bound to note that he faces serious criminal offences in Ireland. Seven bench/arrest warrants have been issued in consequence of his non-attendance. These allegations include allegations of assault, theft, and threats to kill.

Whilst Mr Gration and Mr Basi recognise the “exceptional” circumstances in which a valid or unimpeachable judgment of a foreign court could be rejected on the grounds of public policy, they nonetheless submit, that E’s case falls, as they put it, “within the narrow compass envisaged by Holman J in Re S” (supra). In endeavouring to distinguish the reported caselaw, it is contended that E’s situation is different from the reported decisions “because the issue of recognition and enforcement has to be considered together and the ultimate outcome of enforcement is likely to lead to disastrous and lifelong consequences for [E]”. This submission is pitched very high, but I recognise it to be faithful to E’s instructions. Inevitably, Mr Gration emphasises E’s clearly and consistently expressed wishes to remain in the UK and that E, at 16, is of an age where his wishes should be heard clearly and understood.

There can be no doubt that E endured a very difficult start to life in Ireland. This included exposure to parental mental ill health, substance abuse and consequential emotional rejection. E was initially received into the care of the CFA, by voluntary consent, shortly before his 5^th birthday. There is a history of placements breaking down and of E placing himself at risk absconding from placements e.g., crossing the border to Northern Ireland, where he is said to have been discovered in the company of adults who had supplied him with illicit substances. E made allegations of physical and sexual abuse against named residential care staff. He later withdrew the complaints. I draw no inferences of any kind from this withdrawal.

Relatively shortly before E absconded to England, he had found himself in accommodation which was described by his Irish guardian as “entirely unsuited to his profile need”. Prior to this absconsion, he made a serious allegation of sexual assault which was investigated by An Garda Sichana. There can be no doubt that E’s views since arriving in England have been consistently and clearly expressed. He is strenuously opposed to returning to Ireland and into the care of the CFA. He has expressed himself to be at serious risk in Ireland and stated that he fears that his life will be at risk. He has described himself as “petrified” by the prospect of returning to Ireland. It is his position that the contemplated order would be contrary to his welfare, having regard to his age and lived experiences and that such recognition of the Irish order would be manifestly contrary to public policy.

Mr Gration and Mr Basi have ensured that E’s voice has been heard fully and clearly in these proceedings. E is intelligent enough to recognise the quality of representation he has received and, I believe, is appreciative of it. All this said, there can be no doubt that for non-recognition to be achieved under Article 23(2)(d), it will be necessary to establish exceptional circumstances and on the clearest of evidence. The exception provided for in Article 23(2)(d) is to be regarded as a very narrow one. The application of the principles of international comity in this sphere do not generate a tension with the principles of child welfare, on the contrary, they both support and promote the child’s interests. Thus, recourse to the public policy clause requires clear evidence that recognition or enforcement of a judgment of another contracting state would be so at variance and to such an unacceptable degree that it contravened or infringed some fundamental principle in the State where enforcement is sought.

The facts of this case could not be further from the circumstances contemplated by Article 23(2)(d). On the contrary, the approach of the High Court in Ireland, has been so strikingly similar to the approach of this court that the two are almost interchangeable. I have already commented as to how the transcripts there resonate so closely with the exchanges in this court. E’s essential position was placed in unambiguous terms before the Irish Court at the time the further Special Care Order was made on 16^th May 2024. Mr Justice Jordan took those matters into account and having carefully analysed them, concluded that it was appropriate and in E’s best interests for him to be returned to Ireland and to be placed, in the interim, in the placement provided, it being clearly indicated that the placement is to endure only until a Special Care bed is made available for him. The approach of the Irish Court was to bear down on the CFA and to emphasise the importance of a continuing drive to identify appropriate care. It is a scenario with which I and very many Judges of the Family Court will be all too familiar.

E’s circumstances are being scrutinised with careful attention by the High Court in Ireland, which has ready access to all the documentation relating to the history of this case. There is already in place a Special Care Order and E has been granted representation by a similarly experienced team. Whilst I entirely understand this young man’s determination to be free of his past in Ireland, I am entirely satisfied that his circumstances and his allegations can be most effectively litigated in the Irish Court. The Article 23(2)(d) exception has not been met.