Supreme Court: Authorisation of UK to assume jurisdiction over child care proceedings overturned

About this case:

• Judgment:
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Background

JD, a UK national, moved Ireland in September 2014, when expecting her second child. The child, RPD, was born on the 25th October 2014.

JD’s elder child, S, had placed in institutional care in the UK in 2010; because of medical findings that JD then had an anti-social behaviour personality disorder, and had engaged in physical violence towards S.

When JD was expecting R, and whilst she was still living in the UK, was subject to a pre-natal assessment organised by the child protection authorities there. The UK social work authorities felt that JD’s second child should be placed in a foster family.

Considering the social work authorities’ views, JD moved to Ireland, and her second child, R, was born here a month after her arrival. Both JD and R have been residing in Ireland, albeit living separately, since that time.

Shortly after R’s birth, the Circuit Court ordered R’s provisional placement in a foster family.

In parallel with the District Court proceedings, the Child and Family Agency decided to bring an application to the High Court, to have the case transferred to the High Court of Justice in England and Wales under Article 15 of Regulation No. 2201/2003.

Notably, this application was supported by R’s guardian ad litem, who independently represented the best interests of the child throughout these proceedings.

In March 2015, the High Court authorised the CFA, under Brussels II R, to request that the High Court of Justice in England and Wales assume jurisdiction in the case.

Supreme Court

JD then applied for authorisation under Article 35.4.4 of the Constitution, to directly appeal against the High Court’s judgment to the Supreme Court.

Mr Justice John MacMenamin explained that the Supreme Court granted the unusual application to hear the appeal directly, because matters of general public importance arose, and because the matter was urgent, concerning the welfare of a young child.

The Supreme Court was of the opinion that there were certain matters, regarding the interpretation of the Regulation, which required further clarification in order to determine the appeal. It was decided to refer these to the Court of Justice of the European Union (CJEU), pursuant to Article 267 TFEU.

Court of Justice of the European Union

Justice MacMenamin outlined the guidelines which flowed from the ruling of the CJEU:

1. It is the duty of the court which first deals with a child care matter with international dimensions, to consider the question of whether it is the court best placed. In the instant case; the District Court.

2. The question of “best interests” is to be dealt with in a manner apart from the consideration of “forum”. It follows from this that observations to a different effect, made in the judgment in the MW case, are to be confined to the facts of that case.

3. Motivation for parental movement from one jurisdiction to another is to be excluded from the assessment, unless those considerations might have adverse repercussions on the situation of the child.

4. A court must assess the issues underlying the question of proximity. In general, it is in the interests of the child that his or her case be dealt with in the court of their habitual residence, because this will be the jurisdiction with which he or she has the greatest proximity. While Article 15 recognises that, in some exceptional cases, the application of this general principle would not protect and ensure the best interests of the child, there is a “strong presumption” that this arises under Article 8. However, this presumption can be rebutted if there is evidence of a sufficient degree of proximity between the child and another member state so as to render the exercise of jurisdiction, pursuant to Article 8, inappropriate, and contrary to the best interests of the child.

5. In order to ascertain whether there is a sufficient degree of proximity between a child and another member state to justify a transfer pursuant to Article 15, a court should apply the following factors:

(a) Whether there is a particular connection with another member state. If there is no such connection, there cannot be a transfer.

(b) The court must then consider the degree and extent of the proximity to the other member state arising from the particular connection.

(c) To establish that a court is “better placed”, it must be proved that the transfer of the case to that court would provide genuine and specific “added value” with respect to the decision to be taken.

(d) In considering whether there will be such “added value”, the court may not have regard to the nature of the substantive law of the other state, but may have regard to the rules of procedure therein.

(e) The court must be satisfied that the transfer of the case will not have a detrimental effect on the child.

Notably, the CJEU held that the right of freedom of movement was not relevant, other than being a factor to be taken into account in the consideration of the best interests of the child in the context of the transfer of the case.

Events subsequent to referral to the CJEU Justice MacMenamin explained that the position of all the parties involved had evolved since the referral in 2015.

JD has been permitted access for 2 days per week, and further access was granted to allow R to meet JD’s other son, S.

The Court heard that JD had undergone several educational courses, and accepted her failings regarding past parenting.

JD submitted that the allegation that she is unable to put her child’s needs first could not be evaluated in the absence of updated psychiatric reports.

Delivering the unanimous judgment of the seven-judge Court, Justice MacMenamin emphasised that at all stages a child’s interests should be paramount, and that, on occasions, the elapse of time in court proceedings can itself have a significant bearing on the potential outcome of these particularly sensitive cases.

In all the circumstances, JD’s appeal was allowed.