Bedford Bourough Council v M

CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date29 September 2017
Neutral Citation[2017] IEHC 583
Date29 September 2017
Docket Number[2017 16 FJ] [2017 966 SS] [2017 680 JR] [2017 703 JR] [2017 709 JR]

[2017] IEHC 583


Humphreys J.

[2017 16 FJ]

[2017 966 SS]

[2017 680 JR]

[2017 703 JR]

[2017 709 JR]

A & ORS.
A & ORS.
A & ORS.
A & ORS.

Constitution – S. 17 of the Child Care Act, 1991 – Council Reg. 2201/2203 – Emergency care order – Protective measures – Jurisdiction of Court – Removal of child without parents' consent – Fair procedures.

Facts: The present proceedings concerned the resolution of many actions. First, three judicial review applications were filed against the interim care orders of the District Courts. Second, one habeas corpus application was filed for the immediate release of the child of the applicants, and third, an ex-parte order was made by the High Court recognising the jurisdiction of the English Courts. The proceedings revolved around the recognition and enforcement of the care orders of the applicants' child by the Courts and an order for the removal of that child from Ireland to the United Kingdom on the basis that the child was a habitual resident of the United Kingdom. The father of the child presented uncontroverted evidence to the effect of the child wanting to be united to his parents and the opinion of a social worker to that effect.

Mr. Justice Richard Humphreys granted an order for the release of the child under art. 40.4 of the Constitution by the Child and Family Agency ('Agency') to the custody of the parents. The Court dismissed the motion to set aside the ex-parte order of the High Court under inherent jurisdiction of the Court and allowed the same under s. 33 of the Council Regulation to the effect that the English orders were not enforceable in the State. The Court also quashed the relevant District Court orders and granted an injunction for restraining the removal of the child from Ireland. The Court criticized the Agency for applying s. 18 of the Child Care Act, 1991 for the purpose of art. 20 of the Council Reg. 2201/2203. The Court held that the learned District Court judge had applied an incorrect test to assess the risk to the child's welfare. The Court pointed out that the correct test was whether there existed reasonable cause to believe that circumstances existed whereby the child's health and development was likely to be impaired. The Court opined that the child's best interest presumptively had rested with the parents and the orders that interfered with that relationship must be balanced against the possibly unpredictable risk of future harm.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of September, 2017

The present proceedings consist of five High Court actions - an application to set aside an order recognising EU family law orders, three judicial reviews and a habeas corpus application, all of which I directed should be heard together. As the then current interim care order under challenge was due to expire on 25th September, 2017 I directed a hearing as a matter of some urgency on 19th and 20th September, 2017. The parties are the parents and their three year old child, represented by Ms. Berenice McKeever B.L., the Child and Family Agency represented by Mr. Feichín McDonagh S.C. and Ms. Sarah McKechnie B.L. (who also addressed the court), and Bedford Borough Council, represented by Mr. David Leahy B.L., and I am grateful to all counsel for their very helpful submissions.

Facts and procedural history

The parents' relationship began in 2012. The child was born in another EU member state on 20th December, 2013 and is a citizen of that state.


The father acknowledges that his relationship with the mother has at times been somewhat unstable, though he states that this has in no way affected the well-being of the child.


The relationship involved certain argumentative and violent incidents including verbal arguments in January, 2014, February, 2015, and April, 2016 and an assault on the mother in July, 2016. These resulted in police visits, and in the case of the first incident a social work assessment which concluded that no intervention was required.


It was accepted by the agency in the District Court that when a social worker spoke to the mother in August, 2016 an assessment was discussed in terms of it being voluntary rather than compulsory.


There were some limited attempts by social workers to make contact with the parents in October, 2016 but this does not seem to have been followed up.


On 17th February, 2017 social workers sent a text and phoned the maternal grandmother indicating a wish to assess the child and threatening to institute court proceedings. The English social workers appear to have made limited efforts to follow up with the parents, who then decided, essentially out of a fear and mistrust of the English care system, to move to Ireland, which they did in February, 2017.


Around this time Bedford Borough Council then sought a care order in relation to the child. It is fair to say on the basis of the evidence that the main motivating factor for the care order was their inability to assess the welfare of the child, due to the failure of the parents to engage with them. The affirmative evidence of positive acts by the parents that would give rise to a likelihood of actual harm to the child was quite sketchy – this was a case where the risk was unknown, Bedford wanted to assess it, and sought a care order to do that.


On the 24th February, 2017, the English High court (Baker J.) made an interim care order in respect of the child, providing that he be placed in the care of Bedford, and made a further order providing that the child be delivered into care (a ' collection order'). That order was made without the parents being represented on the date it was made.


In May, 2017 the family moved into a boat in a coastal location in Ireland.


On 19th July, 2017 Bedford were informed by Interpol that the family had been located on the boat.


On the 19th and 20th July, 2017 an emergency care order was applied for in Cork District Court and granted by Judge Constantine G. O'Leary for the duration of eight days. On the 25th July, the agency made an application for an interim care order pursuant to s.17 of the Child Care Act, 1991. The applicants' counsel Ms. McKeever arrived 35 minutes after the hearing had commenced, and their solicitor was not in attendance. Judge O'Leary held that the threshold criteria for such an order was met, though only granted a short order in accordance with fair procedures, to permit the applicant time to prepare their defence.


On 20th July, 2017 the two English orders were served on the parents.


On 25th July, 2017, the interim care order was extended by Judge O'Leary.


On the 31st July, 2017 following a further hearing, the learned judge held that the child's habitual residence was in the UK and that the Irish court had no jurisdiction save for protective measures. Judge O'Leary was satisfied that the threshold for s.17 criteria was met, and made a 29 day order. The reasons given by the court for this decision emphasised the dangers inherent in the applicants' proposed plans to sail to Spain.


The father avers (uncontradicted, which I accept) that the social worker Ms. Higgins has told him that the foster carer ' had advised that she had absolutely no concerns in relation to [the child's] care'. He says that agency social workers have said things like ' he is clearly missing you (i.e., the parents) and is distressed'. He says ' [w]e witness at each access just how being forcibly kept away from us is affecting him and just how upset he is. He keeps asking to go home and the following are examples of his direct quotes and reactions ... "do you not love me anymore"; "I want to be with my mummy and daddy", "I love you", "do you miss me"; that he will "tell the man to leave mummy alone and let us be together again" ... "how is ... (our dog)", "are you sad when I'm gone", "I miss you so much", ... at the end of access ... [h]e has hidden under the table and held on to the table legs crying and saying "no, no, no, no, no, I'm not going, I want to be with my mummy and daddy".' (para. 111).


The father also avers (uncontradicted, which I accept) that social workers have said that '" we must be very proud" and that he "is a credit" to us and have said again to us that "there's no question of your parenting ability". Ms. Higgins, social worker, has told us that she "can tell that [he] is a cared-for child".' (para. 112).


Indeed in substance Ms. Higgins confirmed some of these aspects in her own evidence in the District Court on 25th July, 2017. She stated that she had not formed any opinion as to the child being likely to be harmed by his parents and had not found any evidence to suggest that he would be (p. 39 of the transcript).


On 22nd August, at a hearing commencing at around 11.52 a.m., Barrett J. granted an ex parte application by Bedford for orders recognising the English orders. Later that day in an application commencing around 2.55 p.m. he granted the parents leave to apply for judicial review of the order of 31st July, 2017. He then stayed his earlier ex parte order in favour of Bedford, in the light of submissions from the parents.


The applicants then set about notifying Bedford and the agency of the stay. Bedford stated that if the court's written order was not furnished to its English office by 5 p.m. that the child would be brought to the airport and removed from the jurisdiction by its social worker and that 5.30 p.m. was its cut off point in order to prevent this from happening. The father also phoned the English social worker...

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