The District Court granted an order under Article 15 of the Brussels IIa Regulation transferring proceedings regarding a five-week-old baby to Northern Ireland. This followed a judicial review which found that the court had jurisdiction to hear the matter.
The court heard that the baby’s parents had arrived in the State from Northern Ireland prior to the birth of the baby. The eldest child of the parents was in care in Northern Ireland. The matter had been the subject of judicial review proceedings as a district judge had previously ruled he did not have jurisdiction to hear the matter and this was reviewed by the High Court as the Child and Family Agency (CFA) had applied to have the matter transferred to Northern Ireland.
Both parents were represented and contested the application.
Consultant clinical psychologist
A consultant clinical psychologist had prepared three reports in respect of the parents. He had met the mother on two occasions. On the first occasion he interviewed the mother for six hours and said the mother was pleasant and highly motivated to engage in the process. At the initial assessment the mother was aware of the concerns of the social work department in the North and she had no difficulty understanding those concerns.
The mother described the relationship with the father as good. They cohabited together and she became pregnant with their first child. After she became pregnant, things changed as the father became “domineering and controlling.” He was insecure, would try to monitor her movements and he would be annoyed if her friends turned up. The father was a “very physically violent man” and there was physical and sexual violence in the relationship.
The consultant clinical psychologist said: “She was very afraid of him and a prisoner by him but was not able to do anything about that.” The mother could not understand why she did not leave the father. The eldest child was present during the altercations. The father did not seem to be aware that he should not be behaving in this way and that his behaviour was detrimental to the child.
In early 2019 the father was in prison and the relationship ended. The mother told the consultant clinical psychologist that she did not intend to resume the relationship when he was released. She had engaged with social services personnel and had attended a therapeutic programme. The mother realised she was in a destructive relationship which was dangerous for herself and the child. The consultant clinical psychologist said the mother “was showing good insight into the nature of the relationship.” The mother felt she had been brainwashed by the father and was determined not to go back to him.
The mother told the psychologist of times when she broke up with the father and then resumed the relationship. The mother’s parents were initially of the view that the father was a young man with problems but they were prepared to give him a chance. After a fallout, they wanted the mother to end the relationship.
He said: “In January 2019 …she [the mother] had a clear sense that her parents would be a support and they rallied behind her.” The consultant clinical psychologist was of the view that the mother presented with a strong dependency on the father. He felt the mother had learned a lot from her relationship. She understood the disruptive factors of the relationship and would avoid another relationship with the man.
During the separation, the mother said she was living in a house on her own and her parents had taken on caring for her eldest child. The eldest child was taken into care in June 2018 and was in a kinship placement with his maternal grandmother.
The consultant clinical psychologist met the mother on a second occasion. The father was present for the interview. The mother was pleasant and engaged well but she maintained all of the allegations she made against the father in her first interview were untrue. She said their arguments were mild and they were back together.
Serious allegations were made against the father and statements were given to the PSNI. The mother subsequently withdrew her statements. Counsel for the father said the father was facing a jury trial in respect of the allegations made and a jury was empanelled but no witnesses were called. A jury and judge sat and an acquittal was made. The father had a subsequent conviction for assault.
Counsel for the CFA asked: “Why did she make those allegations?”
The consultant clinical psychologist said: “I could not establish a clear sense for the reasoning. She had been under a lot of pressure and had not liked him [the father]. She was trying to explain why she went into a relationship with him.”
The consultant clinical psychologist noted the mother was much more mature than the father. She presented as taking the lead in the interview. He said: “They were comfortable with each and presented as a couple.” Despite saying there were mild problems in the relationship, the mother thought there was no reason why they should not be together. She was pregnant with her second child during the interview and she wanted to work with the social work department.
The court was told the father had a fractious relationship with the social work department. The consultant clinical psychologist said the mother did not know the problems stemmed from his intellectual ability and aspects of his own childhood. The mother realised that both of them would have to work with the social work department if they were to persuade people that things were as good as she said they were. The social workers believed the relationship had been concealed. The mother said the couple had moved house in order to “decrease the pressure from her on her family.”
Counsel for CFA asked: “[How was] her understanding of domestic violence and her capacity to provide a safe environment for the child?”
He replied: “She did exhibit an intellectual awareness of the problems. The father had a difficult early life and emotional problems. It seemed to be more hope that things would change. If the original descriptions of the relationship were true, then her going back to the relationship without anything being done to address those things was very concerning. Even though you take his background and his problems, the fact that they would change rapidly is unlikely. It was likely he would exhibit aggressive behaviour. She did not give that enough consideration.”
The consultant clinical psychologist added: “Her [the mother’s] ability to protect was questionable. She was so clear in the initial assessment that she understood the disruptive nature of the relationship and it was my expectation she could move on. Her second presentation was worrying. Both of them need to address the issues in the past.” He said he had grave concerns for the children in the situation the mother described.
The father presented as pleasant and highly motivated during his interview. The consultant clinical psychologist described him as young and presenting as immature. The father had problems with attention, was impulsive and someone who gave up quickly. He did not see himself as having any difficulties though he acknowledged problems in his personality. He went on to explain his criminal and social behaviour and he acknowledged that he should not have done what he did. The father had exhibited aggressive behaviour towards his own mother’s partner and he felt he had difficulties controlling his anger towards the man.
The consultant clinical psychologist said: “He had some level of understanding in hindsight. There were incidents of aggressive behaviour which were worrying and concerning.”
The father was of low average intellectual ability but the consultant clinical psychologist was of the view that he should be able to understand the nature of his behaviour and the social worker’s concerns.
The father’s descriptions of the allegations were stronger than those of the mother, he said. The father had said her family had interfered and he felt they wanted to control the mother. He had contact with mental health services but he did not have mental health problems, he said. The consultant clinical psychologist was of the view that a personality disorder was the core issue. The GP had queried ADHD but a formal diagnosis had not been made. There were indicators that his behaviour had improved and if the father engaged with supports he could get the right help.
The SAVRY [structured assessment of violence risk in youth] test was the appropriate assessment to be administered given the age of the father. There were considerable concerns in his history that would indicate a potential in the future. These other issues need to be addressed.
The father could provide a basic level of care. The consultant clinical psychologist said: “If the family situation was as the mother described it, I would have grave concerns about the environment. The father needs to get help.”
Counsel for the CFA asked: “If he did not take up that help, is he a risk to children?”
The consultant clinical psychologist said the risk would be high. The father had limited understanding and his whole emotional behaviour could be challenging.
Counsel for the CFA asked: “[What are your] recommendations in a general sense about [his] contact with children?”
He replied: “He [the father] loves his children. He wishes the best for them and wants to be involved. I query his ability to manage himself emotionally and behaviourally around them. There are accounts of social workers’ difficulties supervising him with the children. It will be challenging to supervise. He is on probation and they acknowledge he needs help.”
Counsel for the CFA asked: “Both parents as a unit, what is their ability to parent the child?”
He replied: “They have a strong desire to parent the child. Both of them need to address past problems and not just think that things will change. They will take increasing roles in the children’s lives.” He said he would be worried about placing the five-week-old baby in the situation and he thought problems were going to emerge due to the problems in the father’s background.
During their interviews, the parents did not indicate they would move. They were happy where they were due to the supports they were receiving and their connections in Northern Ireland.
The mother displayed some form of dependency on the father. The consultant clinical psychologist said: “She [the mother] is still a young girl and sometimes you get a better picture. Time is on her side and she had other good qualities and is a capable girl. All the indicators were positive but it was all contingent on her not going back to the father as the problems had not been addressed.”
The judge asked: “Did you diagnose [the mother with a] personality dependency?”
He said: “I did not make a diagnosis of such kind. We will see how her history develops. I was impressed and felt she was moving in the right direction. I hope she will be able to move on and hope she would not move to the level to reach a diagnosis … if she engaged in therapeutic supports and got in touch with Women’s Aid. Her bond with the father is strong and it is important he engages as they will always have a relationship being the parents of the children.”
Northern Irish social worker
A social worker from Northern Ireland told the court the social work department had been involved since 2017 following concerns about the eldest child. The eldest child was five months old at the time and was then subject to a child protection plan which was breached. The couple were not together and it came to light the father had contact with the child.
The mother had previously contacted the police and made a referral to the social work department as she was fearful of the father. The father advised he was glad to have a new social work team as had a difficult time with the previous team. The social worker became involved in the case in November 2019. She said the same concerns arose as had been present initially in the relationship. The couple said they were not living together but they were back in a relationship despite several referrals.
The social worker said the parents were expecting their second child. The mother knew the social work department would complete a pre-birth assessment in light of the ongoing concerns. The social worker said: “I met the father and those meetings were difficult. He was aggressive and confrontational. He was threatening and unable to acknowledge the risk and thought that everything was stupid and silly. He thought everything was made up and given his inability to work, we could not work through [what was required].”
The mother engaged well and attended the meetings but she said all the allegations against the father were made up as she wanted to get him into trouble. The mother attended the pre-birth meeting but the father did not.
The social work department had set out a plan for the family and a psychology assessment was completed. She said: “We could not have a review as the parents had fled [the jurisdiction].”
In May 2020, the social worker had facilitated a contact between the father and the eldest child over FaceTime as the mother had direct contact. The social worker said she had become aware of an incident the following day where a man had presented at the house with a weapon. The parents had moved to stay with the paternal grandfather due to their fears of the gunman. The social worker said: “The parents refused to come in and talk about the incident and it materialised that they fled the North. They failed to tell the [social work department] they had moved.”
Following their move, the parents refused to give their address and they gave no indication as to where they were. The social worker obtained their address the following week and visited. The parents said they had moved due to better job and money prospects. The father said he was seeking work and applying for a PPS number.
The social worker had concerns about the mother’s ability to protect the child from harm in relation to her relationship with the father. The social worker confirmed if the baby was taken into care she would be going into a general foster placement as there was no place for her at her brother’s placement.
The judge asked: “What [would have been] your view if they told you they planned to move before the baby was born?”
She said: “We would have worked with them to get a plan in place. We did not have time to discuss that or get the rationale behind the move.”
CFA social worker
The court heard that the parents had arrived in the State in May 2020 and the father contacted the social worker to notify the CFA of the family’s arrival. Later that month the social workers completed a visit and had a discussion with the parents. The social workers explained they had to apply for an emergency care order once the baby was born. The baby was due shortly and there was no time for an assessment. The father was upset and left the room. He then asked them to leave and told the social workers that they did not ask to look around the house.
The social worker said she was clear to the father as to why the social workers were there and it was a very difficult home visit. The social workers carried out another home visit and supervised the first contact. She said access had been positive and the mother had a natural ability to parent the child. The father was nervous holding the baby and the mother had been more encouraging.
Given the long-standing social work involvement, she said the social work department in Northern Ireland was better placed to assess the family.
Counsel for the mother said a proposal had been put to the CFA that the baby would return to the mother on foot of a supervision order and the father would stay away from the property.
The judge asked: “Does he [the father] accept he needs to live separately?”
Counsel for the father said the father would take whatever steps necessary to address the concerns of the CFA and he would stay away so there would be no concerns about the care of the child. The father said he would move to live with his grandfather in the North.
The judge asked: “If he had to move, would he continue the relationship?”
Counsel for the father said the father needed to undertake substantial work and he would give the mother the opportunity to undertake her work.
The judge asked: “Will he do the work to comply with the CFA and the [social work department in the North]?”
Counsel said: “He is undertaking a protective parenting risk programme and he indicated he wishes to continue to do what the Probation Officers want him to do.”
Counsel for the CFA submitted an interim care order was necessary and quite an amount of investigation had taken place. The consultant clinical psychologist spoke of the father’s anger management and impulsivity which was shown by his quick move to the State. The father had three meetings with the social workers and told them nothing. The mother was a vulnerable woman. Counsel said the mother’s level of dependency and impulsivity led the parents to the situation in which they found themselves.
Counsel for the CFA argued that the matter should be transferred to the court of Northern Ireland under Article 15 of the Brussels II Regulation. Counsel referred to the decision of the Supreme Court in CFA v JD and said it was clear the particular connection in this case was with Northern Ireland. The parents lived in the North and they had no connection with the State.
The father had suffered an accident and went back to his GP to Northern Ireland for treatment. He also gave an undertaking he would reside with his grandfather in Northern Ireland.
She said the courts in Northern Ireland were better suited to determine the issues for the baby due to the family’s background. The baby’s brother was in the North and all contact with the social workers took place in the North.
She said with regards to the added value for the child, a court needed to have comprehensive range of information to reach a decision and the court in Northern Ireland would have that added value. There were numerous social workers, PSNI and the Probation Officer in the North engaged with the family and the added value of all those people would be suited to the Northern courts.
Counsel said the court must be satisfied there would not be a detrimental effect on the child. If the matter were transferred, the baby would be in the same jurisdiction as her brother and all the information would be available on her parents in Northern Ireland. She said: “In all circumstances, the requirements under Article 15 are satisfied… The child shall be considered to have a particular connection to a Member State if that Member State is the habitual residence of a holder of parental responsibility.”
The judge asked: “[In relation to] Article 15 (1) are transition arrangements in place?”
Counsel replied: “Yes, pending Brexit. Another Member State can be read as including Northern Ireland.”
The judge asked about the habitual residence of the baby. Counsel for the CFA said the baby had not established habitual residence but it was more likely than not that her habitual residence was in the State. Counsel said it was not necessary to decide the baby’s habitual residence as the holders of parental responsibility had habitual residence in Northern Ireland.
Counsel for the mother said the threshold for the interim care order had not been met and a supervision order would be the more appropriate order.
In relation to Article 15, there were three primary considerations to grant the order. The child was resident in the State and was habitually resident here. The baby was born in the State to parents who had moved here and she had not been to Northern Ireland. The holders of parental responsibility were habitually resident in the State and it was their intention to remain here.
Counsel said habitual residence was a matter of fact and the conditions were not met. The particular connection was not met. She said the court in Northern Ireland was not best placed to hear the matter as there must be shown genuine and specific added value. The witnesses of the CFA and the two witnesses from Northern Ireland would be able to travel again, and there was no added value to transfer the proceedings.
She said: “We are in a position where the social workers and the social work team have not completed an assessment and it cannot be held against the parents that an assessment has not been conducted. It is not in the child’s interests to be moved.” If the case were transferred, the child would not be in a kinship placement with her brother and she would be removed from her parents. She submitted that this would be detrimental and it must not have a detrimental effect.
Counsel for the father said if the CFA indicated they wished to bring a barring order, the father would agree and consent to same.
The judge noted there were applications under section 17 of the Child Care Act, 1991 and under Article 15 of the Brussels II Regulation. He said the habitual residence of the parents remained in Northern Ireland. There were many positive aspects to the mother but it was the primary concern whether she could be a protective factor for the child.
The evidence of the consultant clinical psychologist raised concerns about the mother’s ability to be a protective factor. The child had a particular connection with Northern Ireland and the courts there would be better placed to deal with the matter. Northern Ireland would provide genuine and added value.
The parents moved to the State in May 2020 and had long term involvement with the social department in Northern Ireland prior to the birth of the baby. Their family was in Northern Ireland and the parents did not have family here in the State. The courts in Northern Ireland had previous involvement with the family. The judge concluded that the court was satisfied that transferring the matter would not affect the child and it would be in her best interests to return to Northern Ireland. The judge granted an interim care order by virtue of Article 20 of the Brussels II Regulation for a period of 29 days.
He said the address of the child was to be withheld and access should be in accordance with section 37. The court recommended access to remain at its current levels of not less than five week days.
