The Child and Family Agency (CFA) made an application to the High Court seeking leave to bring judicial review proceedings against a decision of a District Court judge in childcare proceedings. The barrister for the CFA informed the High Court that both respondents, who were on notice, were supporting the leave application. The District Court judge had ruled he did not have jurisdiction in the case.
The barrister told the court that the proceedings related to a new born baby born in the Republic of Ireland. The parents had been living in Northern Ireland and had recently moved to the Republic of Ireland just prior to the child’s birth. The court was told that the CFA were concerned that the parents were evading the Northern Ireland social services as the family was known to their social services and they had another child in the care of the social services in Northern Ireland.
About a week after the child was born in a District Court in a border county the CFA sought an interim care order under the Brussels II a Regulation (EC) 2201/2003 (which seeks to regulate the jurisdiction of courts in member states in family law matters), and also seeking to transfer the child and the case to Northern Ireland. The District Court judge had decided that he did not have jurisdiction in the matter and the CFA were seeking to quash the decision on the basis that the District Court judge had misdirected himself on the law and that he did have the power to grant the application.
The barrister for the CFA opened the grounding affidavit for the application for leave. He set out the location and the date of the child’s birth and said that the parents had recently moved from Northern Ireland to a county in the Republic of Ireland just prior to child’s birth. The affidavit stated the CFA were notified by the social services of Northern Ireland that the parents were known to their services and that the mother was pregnant and was due her baby.
The CFA had been notified that there were concerns of physical, sexual and emotional abuse by the father as against the mother. An older child, of pre-school age, of the parents had been in care since June 2018 on foot of an interim care order in Northern Ireland. The affidavit stated that it was the CFA’s belief that the parents had left Northern Ireland to avoid the intervention of the social services of Northern Ireland.
The barrister for the CFA told the High Court that an application for an emergency care order was brought before the District Court two days after the child’s birth but that following “extensive discussion” an agreement had been reached to adjourn the matter as the hospital where the child had been born had indicated that it would allow the mother and baby to remain in hospital for a further number of days.
Approximately one week after the child was born the CFA withdrew the emergency care order application and proceeded on the basis of an interim care order under Section 17 of the Child Care Act 1991. The affidavit stated that the CFA had advised the respondent that it intended to initiate Article 15 proceedings under the Brussels IIa Regulations seeking to have the child and proceedings transferred to Northern Ireland.
The parents had consented to the ICO for seven days on the basis that the mother and child would remain in the hospital and the father gave an undertaking not to contact the mother and baby or to attend the hospital.
The grounding affidavit stated that it was indicated that Article 8 of the Brussels IIa did not apply where habitual residence could not be established as the birth parents had only been in the jurisdiction for approximately one week prior to the birth of the baby. Article 8 was read out to the High Court, which was told that the District Court judge had stated that it did not apply and the child was not habitually resident in the State. The District Court judge then went on to consider if Article 12 of the regulations applied and the CFA that it did submitted not apply on the basis that the child did not have a substantial connection to this jurisdiction and the parents were not habitually resident in this jurisdiction.
CFA barrister: “The CFA say that the substantial connection of the child is in Northern Ireland as the parents were only [in this jurisdiction] for a brief period of time and Article 12 does not apply as there is no substantial connection.”
The barrister for the CFA told the High Court that the CFA had then told the District Court judge that it was relying on Article 13 of the Regulations in respect of parents of a child in this jurisdiction as Article 13 stated that where a child’s habitual residence cannot be established “the courts of the Member State where the child is present shall have jurisdiction”. As the child was present in a hospital in the Republic of Ireland and had resided in the hospital since birth that Article 13 was the “appropriate article for the District Court to have jurisdiction”, the CFA said.
The CFA barrister told the High Court that the District Court was informed that the parents’ legal representatives had agreed that the District Court had jurisdiction under Article 13 but the judge had stated that presence does not give rise to habitual residence. A leading text book in childcare law was opened to the District Court which stated that the default article was Article 13 if it was found that Article 8 and Article 12 did not apply. The father had supported the jurisdiction under Article 13 and the mother had also adopted that position.
The grounding affidavit stated that the District Court judge then rose to consider his decision. The District Court had judge referred to a Supreme Court case of CFA v CJ and CS. The High Court was told that submissions were made to the District Court judge that there was a difference with that case as child care proceedings had already been instituted in Scotland in that case and there were no child care proceedings in the North at this time in relation to this case.
The CFA barrister said that the District Court judge had referred to other cases relating to habitual residence and he said that Article 12 was not applicable and he discounted Article 13. The District Court judge had made a finding of fact under Article 8 that the respondents were not habitually resident in this jurisdiction.
High Court judge: “Article 13 comes into play where we cannot establish habitual residence.”
CFA barrister: “Exactly. If Article 12 doesn’t apply then move to Article 13.”
The CFA barrister said that the District Court judge then granted an ICO under Article 20 of the Regulations for a period of fourteen days and the barrister submitted that the District Court judge had misdirected himself in law and in relation to the Regulations as he “had jurisdiction under Article 13”. The High Court was told that the CFA was seeking to have the decision where the District Court found that he did not have jurisdiction quashed and were seeking leave to bring judicial review proceedings.
The barrister argued that if the High Court quashed the order it might then send the proceedings back to the District Court but that at all times prior the parents have had habitual residence in Northern Ireland. The CFA barrister stated that Article 13 granted jurisdiction to hear an application under Article 15 and to request to transfer to “a court better placed to hear the case”, being Northern Ireland. The High Court judge was told that the CFA was also asking the judge to grant an order pursuant to Article 20 of the Regulations that the child remain in the care of the CFA pending the determination of the proceedings.
Judge: “I am fully satisfied there is an arguable case that Article 13 does apply where other articles don’t apply. I am satisfied in circumstances that it is the case that [the child] was born in [county in Republic of Ireland] and is a number of weeks old and habitual residence cannot be established…These courts should have jurisdiction as present.”
The High Court judge was satisfied that there was an arguable case and the CFA were entitled to leave to bring judicial review proceedings.
The barrister for the mother said that the mother was supporting and not objecting formally to the leave application but that there may be some objection to some of the reliefs sought in the judicial review proceedings. The barrister confirmed that in respect of Article 13 there was no dispute and it was accepted that the District Court did have jurisdiction, which was a submission that had been advanced by all parties on that day before the District Court judge. The barrister told the judge that the parents intended to file replying affidavits to the judicial review proceedings.
In respect of the interim measure sought under Article 20 the barrister for the mother said that relief was contested formally and she had no instructions to consent but that it was a matter for the court.
The judge said that he would grant leave to bring the judicial review proceedings and as the CFA want the status quo to be preserved pending the determination of the proceedings and said “notwithstanding the absent of consent I propose to grant that order to hold the situation as is pending the determination of the judicial review”. The High Court judge granted leave to seek the reliefs sought and made an order pursuant to Article 20 of the Regulations directing that the child remain in the care of the CFA pending the determination of the judicial proceedings.
The judge fixed the hearing of the substantive judicial review application for Friday 3rd July 2020 and liberty was given to the respondent parents to file replying affidavits. The judge made an order restricting the publication of any information capable of identifying either of the respondents.
In the substantive hearing for judicial review, the barrister for the CFA said the application was in respect of one child born in June 2020. She said the CFA served the statement of grounds for certiorari under Article 13 and Article 15 of the Brussels II a Regulations and that the CFA would go back in the District Court in respect of Article 13 and Article 15. There was no opposition on behalf of the parents to quash the decision of the District Court.
The barrister said during the application for the leave, the Judge made an order under Article 20 of the Regulations in the short term which left the child in the care of the CFA. The CFA was seeking an order under Article 20 until Friday when the matter would be back before the District Court.
The barrister said: “we are seeking to preserve the status quo until Friday, [in order] to be in the same position as we were.”
The parents were objecting to the application under Article 20. The barrister for the mother said the mother wanted the child returned to her care. The mother contested the allegations made against her.
The judge said: “notwithstanding the objections to Article 20. I will make the order until next week under Article 20 for seven further days.” The judge made an order of certiorari setting aside the decision of the District Court. The case will now be heard later this month in the District Court.
