High Court: English Council granted order for return of child who was taken to Ireland by parents despite care order

About this case:

• Citation:
  [2018] IEHC 514
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Úna Ní Raifeartaigh

The child had been removed from the care of her parents due to the repeated false reporting of medical symptoms by the child’s mother, which the local authority said was likely to cause significant harm if she stayed with the parents.

Granting the order for the child’s return, Ms Justice Úna Ní Raifeartaigh was satisfied that the child was wrongfully removed from her habitual residence while she was in the custody of Lincolnshire County Council, and that the facts of the case did not justify the court exercising its discretion.

False reporting of medical symptoms

The respondents, JMcA and AC are British citizens who travelled to Ireland with their daughter in April 2018.

The respondents’ daughter, referred to as “E” in the judgment, was born in England in November 2017. Subsequent to E’s birth, the English authorities became concerned about her welfare due to the mother’s repeated reporting of medical symptoms which, in the opinion of the medical authorities, were not borne out upon investigation. One of the mother’s reports was that E was ‘vomiting blood on an almost daily basis’.

Consequently, an application was made on behalf of Lincolnshire County Council for an interim care order in January 2018. At the time of this application, E was an inpatient at a hospital in England and was under the care of a consultant paediatrician who gave evidence for the Council in the course of the application. An interim care order was granted, which stated that “there were ‘reasonable grounds to believe’ that certain reports made by the mother of certain medical symptoms were ‘false’ and that there was a ‘refusal to accept conclusion of medical staff on these matters after appropriate investigation’, and that this gave risk to ‘reasonable grounds to believe’ that if the child remained with her parents there would be ‘further instances of false reporting of conditions and symptoms which will inevitably give rise to treatment and investigation’ which was likely to cause significant harm to the child”.

Lincolnshire County Council placed E with her paternal grandmother in accordance with a Safety Plan, and the respondents were allowed supervised access three times per week.

In March 2018, the Court instructed a psychiatrist to assess E’s mother, who had a history of mental illness including self-harm and borderline personality disorder.

Wrongful removal

On 20 April 2018, the day after an unfavourable report from a consultant paediatrician was served on the parties, the respondents travelled by ferry to Ireland with E – having taken her from her grandmother’s house in the middle of the night.

When the respondents presented themselves at a Garda station in Ireland on 22 April 2018, E was examined by a doctor who noted that her condition was ‘good and normal’ and ‘appeared well looked after’.

Thereafter the District Court made an order pursuant to s.13 of the Child Care Act 1991 and article 20 of Council Regulation EC 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, placing E in the care of the Child and Family Agency.

Application by Lincolnshire County Council

The present proceedings concern a special summons issued in July 2018, brought by Lincolnshire County Council rather than pursuing matters through the Central Authority of Ireland. Lincolnshire County Council seeks the return of an infant girl to the jurisdiction of England and Wales pursuant to the provisions of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), and Council Regulation EC 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

The respondents, who wished for E to remain in Ireland, were legally unrepresented in the hearing, and submitted that E was happily settled with her current carers and that there was no need to emotionally damage her by placing her with another set of strangers. The respondents averred that they had developed a good working relationship with Tusla, and that E was responding positively to both parents during access visits. Furthermore, the mother averred that the current carers had raised some medical concerns about E that she had previously been accused of fabricating by the UK authorities. Among other submissions, the respondents also averred that if E was returned to England they could not go with her because of the threat of arrest and imprisonment.

Ms Justice Ní Raifeartaigh said that the starting point was that Article 12 of the Hague Convention provides that the Court “shall” return the child where she has been “wrongfully removed or retained in terms of Article 3”. Thus, the basic position is that the Court has no discretion; it must return the child if there has been a “wrongful removal”.

Emphasising that the key issue was not “where or with whom does the Court think the child should live” but rather “do any of the particular circumstances set out in articles 12 and 13 exist in the case to create an exception to the obligation to return, and if so, how should the Court’s discretion be exercised”; Ms Justice Ní Raifeartaigh said that the underlying policy of te Hague convention is to lay down riles as to what court should decide the issues a child’s care and welfare.

Considering the exceptions to the obligation to return, Ms Justice Ní Raifeartaigh was satisfied that Lincolnshire County Council had custody of E within the meaning of article 3 of the Hague Convention, and was exercising those rights when E was covertly removed.

While Ms Justice Ní Raifeartaigh was satisfied that the parents had attended court regularly and behaved with courtesy and dignity, the English Court orders explicitly said that they had been forbidden from taking E out of that jurisdiction and the respondents did not explain why they had failed to consult their professional legal advisers about their entitlements rather than a McKenzie friend – which they averred had told them they were legally entitled to take E to Ireland.

Dismissing, inter alia, the respondents arguments regarding E’s habitual residence having changed, that she was settled in Ireland, emotional damage to E, and complaints about how their case had proceeded in England; Ms Justice Ní Raifeartaigh was satisfied that there had been a wrongful removal of the child from the jurisdiction of England and Wales and ‘none of the doors have been opened to the exercise of the Court’s discretion’.

As such, Ms Justice Ní Raifeartaigh made an order for the return of E to England and Wales.

• by Seosamh Gráinséir for Irish Legal News