Child & Family Agency -v- KG & AM

• Judge: Kelly J.
• Judgment Date: 24 May 2018
• Neutral Citation: [2018] IEDC 7
• Case Outcome: Approved
• Date: 27 November 2003
• Court: District Court (Ireland)

IEDC [2018] IEDC 07

THE DISTRICT COURT

AN CHUIRT DUICHE

DISTRICT NO. 1

In the matter of K M a Child.

Child Care Act, 1991

Article 15 of Council Regulation (EC) no 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and

enforcement of judgments in matrimonial matters and the matters of parental responsibility (The Regulation).

CHILD & FAMILY AGENCY

APPLICANT

K G

AND

A M

RESPONDENTS

1. The f act ual background to the a pplications brought by the Applicant is set out extensively in the Affidavits of C.Mc G, sworn on the

22nd January 2018 and C.C, sworn on the 18th April 2018, and detail a lengthy history of engagement by the UK Social Services in

Blackburn with t he First and Sec ond Respondents, and t he serious conc erns which led to five of t he First Respondent’s ot her children

being removed from her care.

2. The F irst Respondent arrived at Lett erkenny University Hospital Co. Donegal on 21st January 2018 and gave birth to the Child KM

the same day. It is believed she had travelled from England a matter of days before t hat, and that t he motive for their move from

England was to avoid K being taken into c are there. T he local authority in Blackburn had been involved with t he family in proceedings

involving the First Respondent’s other c hildren, and had been monitoring the Respondents since bec oming aware of the pregnancy.

The First Respondent and Second Respondents are and were at all material times UK citizens and residents, with no habitual residence

in Ireland. The Child was the subject of an application for an Emergency Care Order in this Court brought by the Applicant pursuant to

Sect ion 13 (1) of the Child Care Ac t 1991. This applicat ion, granted for eight days on 22nd January 2018, and subsequent

applications for Interim Care Orders made pursuant to Sec tion 17 of t he Child Care Act 1991, were brought a s protec tive measures

pursuant to Artic le 20 of Council Regulation (EC) No 2201/2003 of 27th November 2003.

3. The Respondents w ere present in this Court on the 29th January 2018 for the first application for an Interim Care Order, and

consente d to t he making of the order up to the 22nd February. They were neit her present, nor represented, at any of the subsequent

applications for Interim Care Orders made herein, nor were they present or represented at t he hearing of this applicat ion on the 11th

May 2018. They w ere aware of t his Application, and that it was to be heard on the 11th May 2018. It is believed that they ret urned

to t he U.K. on 9th February 2018, and have not returned to t his jurisdiction since then. T hey had ac cess to t he Child from the dat e

of his birth until the 8th F ebruary, and have not s een him since.

4. The Applicant s and the Guardian ad Litem, Harry Law (appointed by Order of this Court on 22nd March 2018) have made written

submissions in support of the present Application. T he Guardian ad Litem, in his evidence to t he Court, supports t he Application,

submitting that it is in the best interest s of the Child that t he cas e be transfe rred to the c ourts of the England and Wales.

Jurisdiction

5. K was born in Ireland on the 21st January 2018. He was t aken into the c are of t he Applicant on t he 22nd January 2018, and placed

with fost er careers, wit h whom he has remained up to t he present day. He has never left Ireland, or been in England. Thus t he entire

of his short life has been spent in Ireland. It is submitted by the Guardian ad Litem that, following the reasoning of Lady Hale in Re A

(2013)(EWCA Civ 232) that the presenc e of the c hild is “particularly pertinent” when trying to asc ertain habitual residence, f or the

purposes of the Regulation.

6. Apart from the above, K has no other c onnection with Ireland. Both his parents are U.K. citizens who have their habitual residence

in England. All his half-siblings and extended family live in England. These are fa cto rs which may lead to t he conc lusion that K’s

presence is in fac t “temporary or intermittent” and do not reflect “some degree of integration in a soc ial and family environment”.

(Quoted extract s per McMenamin J in CG v MG (Unreported – Supreme Court 6th February 2015 (2015 IESC 12)). However, given that

Ireland is all that K has ever known, this Court c oncludes that Ireland is the habitual residence of K, within the meaning of Article 8 of

the Regulation, and that this Court has jurisdiction. For t he purposes of Artic le 16 of the Regulation, this Court became seised of t he

matter on the 22nd January 2018, when the application for an Emergency Care Order was lodged. No proceedings were in existenc e in

the c ourts of England and Wales at that time.

Best Interests of K

7. Particular connec tion:

Having decided that this Court has jurisdiction to c onsider the Applicat ion herein, the Court must now c onsider whether it is best

placed to deal with the case, or whether t he court in England is. It is submitted by the Applicant that K has a “particular co nnection”

with the U.K., and t hat t he courts of England and Wales are bett er placed t o hear care order proceedings. This Court finds theref ore

that due to t he fac ts se t out in the preceding paragraph, K has a particular c onnect ion with England for the purposes of Artic le 15(3)

(d), i.e., England is the habitual residence of a holder of parenta l responsibility.

8. Degree and extent of proximity:

As set out in paragraph 6 above K’s parent, half-siblings and extended family live in England. He has an aunt, who has put herself

forward as a relative c arer, and who has pas sed the initial stage of t he assessment nec essary for t his, and who the Guardian ad

Litem believes would c are for him pending completion of care proc eedings in England. This Court therefore finds that the degree and