A District Judge in a regional Court ordered the return of a three-week-old baby to the care of the social services in the United Kingdom. The mother was eight and a half months pregnant when she travelled to Ireland and the Judge decided that she came here to avoid her child being taken into care in the United Kingdom.
The woman was known to social services in the UK and had three older children, who had all been taken into care. When enquiries were made by the Irish Social Work Department, it transpired that a pre-birth assessment had taken place in the UK and they decided to take the child into care upon birth.
The Child and Family Agency (CFA) made an application for an Interim Care Order. This was based on the evidence of the UK social worker which was given by way of CCTV link. The social worker gave evidence that the mother could not put her children’s needs before that of her husband, who is the father of two of her older children. A molestation order was in place together with a restraining order and both of these orders were in place when this baby was conceived.
The Irish allocated social worker also gave evidence and said that when the mother arrived at the maternity unit, hospital staff contacted the social work department because they had concerns regarding where the mother was living and why she was in this jurisdiction. The social worker told the Court that the baby was healthy and remained in the hospital in accordance with the safety plan. The mother had been discharged from the hospital and had regular access.
The social worker said that due to the high levels of concern from their UK colleagues, they had no choice but to seek an interim care order in order to conduct further investigations. He gave evidence that due to concerns about domestic violence and mental health difficulties, it was not safe for the mother to parent her new born child, until after the social work department had the opportunity to conduct an assessment.
The solicitor for the mother was critical of the fact that the social worker had been allocated the case almost seven days previously and had not made inquiries about the mother’s friends in Ireland, her accommodation and her intention to remain in this jurisdiction. The social worker said that while he had a number of conversations with the mother, he did not have time to make additional inquiries.
The mother gave evidence that she had secured a permanent residence in Ireland. She said that she had friends in various locations in the country and planned on getting employment after her maternity leave concluded. The mother said that she had always planned on coming to Ireland and did so to create distance between herself and her husband. She told the court that she had obtained a general practitioner, a PPS number and that while she had no income, she had enough money for the coming months and had paid a deposit for her accommodation and one month’s rent. The mother said that she would cooperate fully with the social work department and provide the names and contact details of her friends in the jurisdiction.
The mother denied that the reason she came to Ireland was to avoid the UK social services and said that she didn’t know that they planned on taking the baby into care as soon as it was born. She told the court that she contacted the social work department in the UK and repeatedly looked for the pre-birth assessment and they failed to provide a copy of the assessment. The mother gave evidence that she underwent all of the therapies required by the social work department in the UK and felt that she was now in a position to parent her child. She said that she was traumatised when her older children were taken into care and that she has tried very hard to change her life.
The solicitor for the CFA told the mother that the main reason she came to Ireland was because she knew that if she stayed in the UK, her child would be taken into care. The mother finally admitted that her reason for leaving the UK was to stop her child being taken into care. She said that she felt the social workers in the UK were biased and that the decision to take the baby into care was based on historical information.
The solicitor for the CFA pointed out that a new social worker had been allocated in the UK to ensure there was no bias and a comprehensive assessment was conducted in the last number of months. He highlighted to the mother that the social worker remained of the view that a lot of the reasons why the older children were taken into care still existed.
The mother replied: “I moved to try to prove to everyone that it was my intention to move away from [the father] and I’ve touched base with everyone and I want to be assessed and have a fresh start. My previous problems, two bad relationships, my children being taken away, I want to give me and [baby] a good life and a peaceful life.”
The mother looked at the judge and said: “One of my reasons for coming here is to be treated fairly”.
The judge granted the Interim Care Order. The judge said that she found the reason why the mother came to Ireland very difficult to understand. She said that travelling quite a significant distance at such a late stage in her pregnancy and with her additional medical difficulties would have put quite a large strain on her. Finally, the judge said that given her ongoing relationship with the father, she has not benefited from her therapies and as a result the judge was very concerned about her functioning and her capacity to make good decisions for her child.
The judge went on to say that she had referred to legislation which exists and arises from the EU Directive and that a hearing to establish the habitual residence of the child was required sooner rather than later and listed that hearing the following week.
When the parties returned to court the following week, the mother had alternative representation.
The solicitor for the CFA made submissions in relation to Article 15 of Brussels II bis and the requirements set out under that Directive. The solicitor also made submissions regarding the habitual residence of a child and in circumstances where there is no definition of habitual residence in the directive, he referred to case law.
The social work team leader gave evidence of the current position and told the court that she had made certain inquiries and told the Court that the mother had secured accommodation in a rural area. The social worker then said that the mother had refused to give contact details of her friends in Ireland and the solicitor for the mother told the court that those friends did not want to be involved in court proceedings.
The social worker informed the court that it was their overall assessment that it was the intention of the mother to leave as a result of the decision to take the child into care, following the pre-birth assessment. She gave evidence that the baby has siblings in the UK and a grandmother who lived close by. She also said that the mother was attending with various services in the UK and that she not availed of similar services here. The social worker was of the opinion that the baby was habitually resident in the UK.
The mother declined to give evidence on this occasion and the solicitor on behalf of the mother made submissions regarding habitual residence and said that as there is no specific definition of habitual residence, every case is taken on its own merits. The solicitor outlined the measures which the mother put in place once she arrived in Ireland and submitted that while she left the UK at a late stage in her pregnancy, she never put the baby at risk.
The solicitor said that she has secured accommodation, sought medical support, a PPS number and at all times engaged well with the social work department in Ireland. She highlighted that any mental health difficulties were as a result of the trauma caused by her older children being taken from her and that she had worked hard to change her life since then.
The solicitor submitted that the reason why the mother chose Ireland is because her mother can travel over and back and she told the court that the mother hopes to get employment in Ireland and has qualifications which will transfer. The solicitor finished: “My client has shown that although she has only been here for a short while, it is her intention to make it her home.”
The judge stated that according to Article 8(1) – the child must be habitually resident at the time the court was seised and therefore the Judge said that “it falls to me to decide the habitual residence of the child”.
In relation to the issues of fact, the judge said the mother has lived her entire life in the UK and while she cannot have contact with two of her three older children, the judge said: “I cannot understand how she would leave her daughter who she does have contact with.”
The judge found that as the mother had got on a boat at the very late stages of a difficult pregnancy, she would have put her and the unborn child at risk. She found the mother’s evidence that she was not aware of the outcome of the pre-birth assessment not to be credible. The judge was of the opinion that by moving herself to Ireland, she had ensured that no family member was available as a potential family placement for the baby.
The judge acknowledged the fact that the mother got a PPS number, made contact with a general practitioner, had her baby in hospital and cooperated with the social work department. However, the judge was of the view that her contact and base was in the UK. The judge also found that the child’s family environment was undoubtedly in the UK and that the baby was not integrated into a particular social and family environment in this jurisdiction.
The judge said: “I perfectly understand her reasons to avoid her child being taken into care. However, I am not allowed to take into consideration what will occur in the UK if the mother and child are not found to be habitually resident here.”
The Court made a formal findings of fact that the mother was habitually resident in the UK and the infant was habitually resident in the UK. The Court made a further finding of fact that the mother left the jurisdiction of the UK to avoid care proceedings.
