About this case:

• Citation:
  [2023] NIFam 25
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge David McFarland

Delivering judgment for the High Court, Mr Justice David McFarland stated: “Bearing in mind that the assuming of jurisdiction by a state in which a child is not habitually resident is a derogation, there has been no compelling evidence presented to suggest that the Trust and the Northern Irish courts would be better placed to assess KG’s best interests.”

Background

The female child, KG, was born in England in October 2022 to unmarried parents who are members of the Irish Travelling Community.

The child lived with her mother in various locations, including Northern Ireland, which the child’s mother considered to be home. On 17 July 2023, the Child and Family Agency contacted gardaí and a home visit was conducted in Co Roscommon. An emergency protection order was issued on that date by the Irish courts requiring the child to be taken into care.

The child’s parents then left the Republic of Ireland that day and travelled to Northern Ireland with her, where the police located the family. Due to the condition of the house and of the child, the police took the child into their control under a protection order before handing her to the Health and Social Care Trust. The Trust passed the child onto the Child and Family Agency on 21 July 2023, and she was placed in foster care, with an interim care order being granted on 25 July 2023.

The child’s mother issued proceedings in Northern Ireland seeking to judicially review the Trust’s decision to remove the child from the jurisdiction and to place her with the Child and Family Agency. The Trust conceded that it had unlawfully removed the child and so leave to bring a judicial review was denied.

On 9 November 2023, the child’s mother issued an application seeking an order that the proceedings be transferred to Northern Ireland pursuant to Article 8 of the 1996 Hague Convention on parental responsibility and protection of children.

The High Court

Mr Justice McFarland considered the provisions of the Hague Convention, noting the exception in Article 8 which allows the state in which the child is habitually resident to inter alia request another state with which the child has a substantial connection to assume jurisdiction in order to best serve the interests of the child. The court further considered the derogation in Article 9, which similarly provides for the ‘other’ state to request inter alia the state of habitual residence to authorise it to assume jurisdiction.

The court explained that Roscommon District Court had conducted a full hearing on 14 December 2023, at which it was decided that the child was habitually resident in the Republic of Ireland and that there was to be no exception based on the best interests of the child.

Recognising that determining “habitual residence” is a “fact-finding exercise based on the child’s centre of interests”, the judge considered: “By operation of the provisions of the Hague Convention and the general application of the res judicata jurisprudence this court is bound by the fact-finding decision of Roscommon District Court that KG is habitually resident in the Republic of Ireland and that that country’s courts have primary jurisdiction.”

Finding that the Roscommon District Court’s decision that Article 8 could not be invoked was not the result of a fact-finding exercise, Mr Justice McFarland considered that he was not prevented from considering that question nor from reaching a different conclusion by application of Article 9.

Noting that the Republic of Ireland invoked its primary jurisdiction by making an emergency protection order on 17 July 2023, the court recounted that when the child was removed from her father’s care and placed into the care of the Trust, the Trust had no jurisdiction as the child was habitually resident in the Republic of Ireland.

The judge considered that although the child’s parents were living in Northern Ireland at the time of the hearing before him, he did not consider “that the presence of the parents and wider family members outside the jurisdiction would prevent Tusla from carrying out its functions directly, or indirectly, by using the services of the Trust”.

The court recognised that in circumstances where the assumption of jurisdiction by a state in which a child is not habitually resident is a derogation, “there has been no compelling evidence presented to suggest that the Trust and the Northern Irish courts would be better placed to assess KG’s best interests. The CJEU in The Child and Family Agency v D [2017] 2 WLR 949 in considering a similar provision in the Brussels IIA framework stated that a transfer should have a genuine and specific added value with respect to the decision making.”

Noting Re D [2021] EWHC 1970, Mr Justice McFarland considered that the decision to refrain from making a request to the Swiss authorities in that case was reached upon “the application of the principle of mutual trust between the contracting states, the clear evidence that the Swiss legal framework was capable of resolving any of the issues in the case that might arise, and the practical difficulties arising”.

The court emphasised that whilst the “practical difficulties relating to KG’s case are not insurmountable, however the mutual respect and the ability of the Republic of Ireland to deal with the issues clearly are relevant in this case”.

Conclusion

Accordingly, the court dismissed the application on the basis that the child was not habitually resident in Northern Ireland, and that the High Court of Northern Ireland was in no better position than the courts of the Republic of Ireland to assess the child’s best interests.

A Mother v A Health and Social Care Trust & Anor [2023] NIFam 25