About this case:

• Citation:
  [2022] NIFam 14
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge David McFarland

The High Court noted that these courts had clear jurisdiction but were reluctant to rule on this “simple case” for over a year because of confusion surrounding border rules post-Brexit.

Background

In March 2021, proceedings were issued by the father seeking a contact order and a parental responsibility order in respect of his 10-year-old son. The father lives in the Republic of Ireland, while the mother and son live in Northern Ireland.

The father stated that despite the distance between them (approximately 100 miles) he was able to enjoy contact under informal arrangements with the mother. However, the restrictions on the island of Ireland, including movement, to combat the spread of Covid-19 resulted in the father having no more contact with his son.

On 3 February 2022, his case was transferred by the Family Proceedings Court to the Family Care Centre on the grounds of “complexity, specifically in relation to the court’s jurisdiction for the making of an order for cross-border contact in the Republic of Ireland following the UK leaving the EU”.

On 24 February 2022, the Family Care Centre transferred his application to the High Court, stating “international element needs to be determined by the High Court”.

The court noted that there were inconsistencies in the overall proceedings. The Family Proceedings Court appeared to accept jurisdiction by making a parental responsibility order directing an Article 4 report and making an interim contact order.

However, by January 2022 the Family Proceedings Court appeared to be declining jurisdiction, refusing to convene a hearing to determine jurisdiction and indicating that the proceedings would be struck out.

This back and forth lead to the proceedings being transferred to the Family Care Centre, and then to the High Court.

Proceedings in the High Court

The matter came before the court on 23 March 2022, the anniversary of the issuing proceedings. The court ruled that the courts in Northern Ireland did have jurisdiction to deal with all aspects of the case

The court noted that there was no question that the child was habitually resident in Northern Ireland. His centre of interests was in that jurisdiction, and both parents agreed on this.

Further, the court clarified that decisions about jurisdiction, even when they involve an international element, can be dealt with in the Family Proceedings Court or by the Family Care Centre, and do not need to be transferred to the High Court.

This is because the core issue in such cases will often be one of habitual residence, which is merely a fact-finding exercise. The decision as to where a child is habitually resident is well within the capabilities of the Family Proceedings Court and the Family Care Centre.

The court also clarified which legal instruments apply in such cases. Prior to withdrawal, both the Hague Convention 1996 and the Brussels IIA were applicable. These both share common themes and concepts and rely on habitual residence of the child as the core jurisdictional determining factor.

The Hague Convention 1996 now applies to all international cases, article 5 of which states that “the judicial and administrative authorities of the contracting state of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property”.

Further, if the courts with jurisdiction consider that another contracting state is “better placed to assess the best interests of the child” then the court can invite the parties to the proceedings to apply to the authorities in that jurisdiction (Article 8(1)).

Consideration

The court emphasised that “The issue in this case could not be simpler […] The Family Proceedings Court appear to have been distracted by the residence of the applicant Father in the Republic of Ireland and the fact that he was seeking contact with the child in that country”.

The courts in Northern Ireland had primary jurisdiction to deal with the application, and the judge stated that the courts in the Republic of Ireland were highly unlikely to be better placed to deal with the issue.

The Family Proceedings Court was wrong to consider it had no jurisdiction. It was also “most unfortunate that the court waited over 10 months to decline jurisdiction despite, in the interim, accepting jurisdiction by making [certain orders]”.

The court cautioned that “if a court considers it has no jurisdiction then it should rule on that point without delay”. There was no reason for the case to have been transferred by the Family Proceedings Court and then by the Family Care Centre.

Ultimately, Mr Justice David McFarland had been minded to transfer the case back to the family courts, but given the delay, he instead gave directions for the final listing in the hopes that it would conclude the “straightforward issue” about contact between a father and his son.