NI High Court: Child sent south of the border to avoid being placed into foster case still within Northern Ireland’s jurisdiction
Northern Ireland’s High Court has found that it still had jurisdiction to hear an application for a care order in respect of an eight-month-old child who was sent to live with his maternal grandfather south of the border.
About this case:
- Citation: NIFam 9
- Court:NI High Court
- Judge:Judge David McFarland
The child was sent away by his mother after she became aware that a social care trust was seeking to place the child into foster care, but the court ruled that “changing a child’s habitual residence is much more than placing the child on a bus and moving it across a frontier”.
On 27 January 2022, a social worker who was on leave and travelling on a bus in the Republic of Ireland noticed a young child travelling with two adults. Neither of these adults were the child’s parents. She recognised the child because the child was the subject of intense and ongoing social services by a health and social care trust.
In this case, the trust was seeking an interim care order, with a plan to protect the child, LS, to return him to the Northern Ireland jurisdiction, and to place him in the care of foster parents.
LS’s parents were unmarried and living apart, but both shared parental responsibility for LS. LS was their second child; their first was an older girl, aged almost five. At the time of the case, she was the subject of care order proceedings in the Family Care Centre, and living in foster care.
The trust became concerned about LS’s welfare in January and conducted a child protection review conference. A decision was made to seek an interim care order to facilitate the removal of LS from the mother’s care.
In accordance with established practice, the mother was advised of this intention on 27 January 2022, the same day as the bus journey.
Once the bus journey was reported, the mother said that LS was being accompanied by his maternal grandfather and his partner and was on his way to their home for a respite break.
The mother later said that she was being untruthful about the reason for the journey. She admitted that her intention was to permanently remove LS from Northern Ireland so that he would be based in Ireland. She stated that she planned to join him at some point.
The court had three primary issue to address:
- Did the court have jurisdiction, given that LS was currently living in Ireland?
- If the court did have jurisdiction, should it determine that Irish courts were better placed to assess LS’s best interests?
- Should the court grant the interim care order sought?
In relation to the question of jurisdiction, the court specified that the relevant governing instruments had changed following Brexit. Before, the provisions of EU law applied under Brussels IIA. Now, the relevant provision was the Hague Convention 1996.
The Hague Convention provides that the country where the child is habitually resident will assume primary jurisdiction. The removal was lawful and approved by the child’s parents, but the court did have scope to consider what date was the relevant time for assessing LS’s habitual residence.
There were three possible options: the date when the trust applied for a care order; the date of the second care order application; or the date of the hearing.
The Hague Convention was silent on this point. The court therefore determined that the relevant date was when the case came for hearing before the court.
Next, the court had to consider where LS’s country of habitual residence was on the date of the hearing, 17 February 2022. The court noted that this had clearly been Northern Ireland until 26 January 2022.
The mother argued, with the support of the father, that LS changed his habitual residence on 27 January 2022. Further, the grandfather stated that “LS is well integrated into my home and into life in [Ireland]”.
The court was conscious that there was no evidence presented that LS had been “integrated” into his new surroundings, except that he slept in his grandfather’s bedroom.
No other social activities were mentioned; however, the court was aware that the child was only eight months old. Further, the child was not registered to receive medical services in Ireland.
The mother, father and sister also continued to live in Northern Ireland, and the father intended to remain there. In all the circumstances of the case, the court considered that LS was not habitually resident in Ireland.
Finally, the court considered whether or not Ireland was better placed to assess the interests of LS. Following the Hague Convention, the court noted that they had the discretion to request the authorities in Ireland to assume jurisdiction, or to invite the parties to apply to the authorities in Ireland to do so.
Ultimately, because the jurisdictions were only a two-hour car ride apart, both children were habitually resident in Northern Ireland, and the Northern Ireland trust was already acquainted with the case, the court found that Ireland was not better placed to assess LS’s best interests.
In concluding, the court noted that the mother’s clear intention on 27 January 2022 was to place LS beyond the control of the trust and the courts in that jurisdiction.
She was not a particularly truthful witness, and the court observed her actions as being both spontaneous and opportunistic and not part of any well thought out plan as to LS’s, or indeed her own, future.
The court therefore made an interim care order for eight weeks, to be renewed thereafter on an administrative basis.