District Court extends Interim Care Order in case of child illegally relocated to State by mother in 2014

About this case:

• Judgment:
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Finding that the father of the child had acquiesced in the child’s relocation to Ireland, Judge Rosemary Hogan was satisfied that the child was now habitually resident in Ireland having become fully integrated in his local community. The Interim Care Order was therefore extended until such time as the Court made a decision as to the substantive care proceedings.

Background

The child came to the attention of social services in the Member State where he was born and habitually resident when the mother sought advice from a charity there about protection from domestic abuse. The charity notified social services about the allegation and the risk to the child by reason of domestic violence.

The Courts of the Member State granted an unlimited Restraining Order against the father to protect the mother and he was restrained from contacting or attempting to contact the mother directly or indirectly.

The Order allowed for limited contact through a solicitor in order to arrange contact with the child.

No order for Residence or Contact was sought by the father or mother.

Move to Ireland

In December 2014, the mother unilaterally relocated to Ireland; and when the father learned of the relocation five months later, he took no legal action ‘as he was satisfied that the child had settled in school in Ireland at that time’.

In March 2015, following concerns raised by the school, the Child came to the attention of the Social Work department in Ireland

In August 2016, a private family arrangement wherein the child was in the care of his maternal uncle, was supported by TUSLA and the mother subsequently signed a voluntary agreement consenting to the child coming into the voluntary care of TUSLA under s. 4 of the Child Care Act 1991.

TUSLA did not notify the father that the child was in voluntary care until October 2016, when the father signed a Voluntary Care Agreement for one month and the child remained in kinship foster care. However in November 2016 TUSLA commenced the present interim Care proceedings when the father withdrew his consent for the child to remain in voluntary care.

Interim Care Order

TUSLA applied for an Interim Care Order on the basis that the child’s health, development and welfare would be avoidably impaired or neglected were he returned to the care of either parent.

In November 2016, having regard to Article 20 of EC Regulation 2201/2003 the Court granted TUSLA an Interim Care Order as a provisional protective measure until such time as the Court made a determination as to jurisdiction to make a substantive order in the case.

Habitual Residence

Judge Horgan recognised that the child’s habitual residence from birth was in the Member State where he was born, and that the mother’s relocation from that Member State to Ireland was neither consensual nor authorised by Order of the Courts of his habitual residence.

The father stated that his child was abducted, but conceded that when he found this to be the case he took no active steps to commence child abduction proceedings, or residence or contact proceedings because he was satisfied that the child was settled in school at that time

Article 10 of Council Regulation (EC) No 2201/2003 outlines the position where a child is abducted. This states that the Member State where the child was habitually resident immediately before the wrongful removal or retention retains jurisdiction:

‘…until the child has acquired a habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;

Or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment…’

On the facts of the case, Judge Horgan was satisfied that the child was settled in Ireland, having attended school regularly since December 2014 and becoming ‘fully integrated into the social fabric of his community and school’, where ‘he actively enjoys sports and has good friends’.

Furthermore, the child’s views were directly ascertained for the purposes of the case – in the circumstances the child expressed the view that he did not wish ‘to return to his old home or to the full time care of his father’.

Judge Horgan explained that if the father had commenced proceedings for the return of the child following the mother’s move to Ireland with the child in December 2014, the Court might have acceded to a request to return the child to the Courts of the Member State of his habitual residence at that date

However, by the time the present proceedings were underway in November 2016 the child had acquired a habitual residence in Ireland and resided in the jurisdiction for over one year. Considering Mercredi v Chaffe Case C-497/10 PPU, Judge Horgan was ‘satisfied that the child was well settled and fully integrated into his social and family environment’ by the time the Court was seized in November 2016.

Approving an extension to the Interim Care Order, Judge Horgan stated that custody proceedings commenced by the father should stand adjourned until the substantive Care Order proceedings are heard before the Court.