District Court: Care order granted for 17-year-old girl at the centre of child trafficking investigation

About this case:

• Judgment:
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The Child and Family Agency (CFA) brought proceedings for an Emergency Care Order before the District Court in respect of the minor, referred to as “X”.

The District Court hearing was in camera, and anything to identify the parties was removed for their protection.

Background

The grounds relied on by the Gardaí when invoking their powers under section 12 of the Child Care Act 1991 were that they had been contacted by Interpol “who apprehended that a minor was in the physical custody, care and control of a much older gentleman”.

They were informed that “X”’s parents had given authorisation for their daughter to travel to Ireland as a tourist with this gentleman for a period of a year, also authorising him to represent “X” before the authorities – executed before a notary in accordance with the law of “X”’s country of origin.

A National of another EU member state, “X” came to Ireland lawfully when she was a mid-adolescent and within a period of weeks, prior to “X”’s lawful entry to this jurisdiction, her parents sought to impugn the lawfulness of the Notarised Declaration.

“X” was mid-adolescent when arriving in Ireland; 17 at the date of the commencement of the care proceedings; and almost 18 when judgement was given in the District Court.

The parents’ position was to permit this gentleman to take “X” out of her country of origin to act as a babysitter for an aunt with a larger family living in Ireland.

When the parents could not contact their daughter they made a formal complaint to their national police as they were apprehensive that “X” might try to marry this gentleman and they were concerned that “X” was at risk of violence and being forced to take drugs.

Pursuant to Interpol communications, Gardaí were requested to locate the couple; and when interviewing the gentleman, the gentleman stated that his relationship with “X” was consensual and planned by arrangement with “X” and with her parents.

He alleged that the parents now objected to the arrangement because he was no longer sending money to them; and that if “X” was returned to her parents, they would make another arrangement with another man for money, as this is what happened with “X”’s older sister who had four relationships under such arrangements.

A CFA Social Worker met with “X” and ascertained that she corroborated the account of the gentleman – she did not wish to return to her country of origin or to the care of her parents, as she feared “they would plan another marriage for her, without her consent”.

Emergency Care Order

The Court previously granted an Emergency Care Order under section 13 (1) of the Child Care Act 1991 and an Interim Care Order under section 17 (1) of the Act.

The Court outlined the necessity for an Article 17 examination of jurisdiction in accordance with Council Regulation 2201/2003 proceeding under Article 20 to ensure protective measures were taken pending such jurisdictional examination.

Discussion

Justice Horgan stated that the “nub of this case” was whether the habitual residence of “X” shifted between the date of Notarised Agreement and the date of the Application in the other EU jurisdiction adduced before the Court pursuant to Article 55.

On the evidence, “X”’s intention and state of mind when she left her country of origin for Ireland was that she intended to reside with the gentleman in an intimate and committed relationship of her choosing and that they would live in Ireland. She had the opportunity of returning to her country of origin when her sister came to Ireland before the commencement of the care proceedings, and declined to return.

Justice Horgan stated that “X” was a mature minor capable of expressing her own views to the possibility of returning to her country of origin, and has been consistent in this context.

As a result, Justice Horgan was satisfied that the case met the ‘unusualness’ threshold outlined in A (Children) (AP) UKSC 60, and the quality of ‘stability’ test outlined in AR v RN (Habitual Residence) UKSC 35, 2 FLR 503.

Given that “X” was very involved in the pre-planning leading to her moving to Ireland, and considering the “see-saw analogy” set out in Re B (A child) UKSC 4; Justice Horgan held that “X” lost her habitual residence as she put down the first roots in Ireland, prior to the commencement of the District Court proceedings, establishing the requisite degree of integration in the environment.

Decision

On the evidence adduced, Justice Horgan was satisfied that “X” became habitually resident in Ireland within some weeks of leaving her country of origin – therefore the conditions to make a Care Order under section 18 of the Child Care Act 1991 were met.

Awaiting the submission of a care plan from the CFA, “X” was committed to the care of the health board, discharging her from the care of her parents.