Coventry City Council -v- S., [2010] IEHC 303 (2010)

Docket Number:2010 11 HLC
Party Name:Coventry City Council, S.
Judge:Mac Menamin J.
 
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THE HIGH COURT

FAMILY LAW2010 11 HLC

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE CONVENTION, AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003 AND IN THE MATTER OF K. S. (A MINOR) AND IN THE MATTER OF FOREIGN PROCEEDINGS ENTITLED CASE NO. EY10C00056 IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF K. S. BETWEEN COVENTRY CITY COUNCIL AND F. S. AND A. S. AND M. S.

BETWEEN

COVENTRY CITY COUNCILAPPLICANTAND

M. S.RESPONDENT

JUDGMENT of Mr. Justice John MacMenamin dated 27th day of July, 2010.

  1. The child at the centre of these proceedings K. S. was born on 19th January, 2010 in Coventry. K.’s mother is F. S.. His father is A. S.. The mother and father are not married to each other. The respondent M. S. is F. S.’s mother. She will be referred to as “the grandmother”. K. is now aged six months. After his birth he lived in Coventry with his parents.

  2. On 3rd March, 2010, he was admitted to hospital. According to the consultant paediatrician who saw him afterwards he was found to have a 1 cm circular bruise on the right side of his forehead almost in the hairline, which was blue in colour. On his right cheek the reports say he had a scabbed lesion, 1 cm x 0.8 cm, which appeared fresh. He is said to have had a red or purplish linear bruise on his left forearm 0.4 cm long. What was described as an “odd red lesion” was discovered on the palm of his right hand, consisting of two 1 cm long curves in his palm both of which were red, and both on the lateral aspect of the palm just under the index finger. He is said to have had a bruise on his left cheek over the maxilla which was blue, circular and 1 cm in diameter. The medical report says that he had a non-displaced fresh spiral fracture through the left humerus, and a small corner fracture of the right distal femoral metaphyses, tibial metaphyses, the left distal ulna and the left distal tibial and fibular metaphyses. There was no history of trauma. It is said the parents did not give any explanation as to what had occurred. The consultant paediatrician who examined K. concluded that this must be an inflicted injury, that is, one which is non-accidental in nature. The consultant concluded that neither of the type of fractures which K. had sustained could occur as a result of normal handling. At the time of these injuries K. was aged six weeks.

  3. As a consequence of what was found the local social services in Coventry were contacted. A meeting took place with the parents and it was agreed that K. would be voluntarily accommodated by the local authority under s. 20 of the United Kingdom Children Act 1989. In view of the fact that there may be criminal charges pending it is necessary to recollect that any accused person is entitled to the presumption of innocence; the possibility of an innocent explanation for these injuries cannot be discounted; it is the respondent’s case that these injuries were the consequence of brittle bone syndrome.

  4. As these proceedings post-date a series of proceedings in England it will be convenient to summarise from the judgment of McFarlane J. in the High Court of Justice, Family Division. These proceedings were brought by the local authority against the parties. The respondent to these proceedings was a notice party to the English proceedings by that stage. This judgment was dated 21st May, 2010. It outlines the background in great detail.

  5. In brief what occurred was this. Section 20 of the United Kingdom Children Act 1989 requires the agreement of parents to a child to be placed with foster parents. It does not provide for a formal care order. Once the child is so accommodated he becomes “looked after” by the local authority. In some circumstances he may in fact be placed with foster parents. In others, the child may be placed with members of an extended family. The social workers were not satisfied for K. to return to his mother and father pending further investigation. K.’s maternal grandmother, M. S., who is a teacher, came from her home in Scotland and moved into the family home in Coventry.

  6. The arrangements between the local authority, and the parents were put in writing. There were two “working agreements”: one with the parents, a second between Coventry Social Care and the respondent, M. S.. In that second agreement the respondent agreed to look after K. at the family home in Coventry for a period of five weeks, to be reviewed in the third week. The respondent was not to allow the mother or the father unsupervised contact to K.. All contacts were to be supervised by Social Care and this was to be reviewed in future.

    7 A similar working agreement was entered into between the social workers and the child’s two parents. This was signed by each of them and dated 8th March. The provisions relating to the parents agreement are similar to those relating to the respondent’s agreement.

  7. It is important to emphasise that this agreement was “voluntary” in the sense that the parents could seek to withdraw from it. However, it was given by the parents in circumstances where, it might readily be inferred, that absent such agreement, the local authority would have applied to a court in England for a formal care order.

  8. The local authority conducted a child protection case conference on 17th March, attended by the parents. On 24th March, there was a “core group” meeting attended by health professionals and the parents. At that meeting the parents were actually informed that the local authority were considering issuing care proceedings. The plan at that time was that K. should remain living with the grandmother. However, the local authority wished to initiate an investigation into the injuries, and if appropriate to pursue that investigation through court.

  9. Then and at all times since, the parents did not accept that K.s injuries were non-accidental. They sought a second opinion as to whether there was another, and innocent medical cause for the symptoms described.

  10. A short time after the core group meeting on 24th March, 2010 and with the agreement of the parents, the respondent removed K. from the family home on 25th March, 2010, and travelled on the ferry to Ireland. The ferry docked in the early hours of 26th March, 2010. Later that same day, the local authority issued care proceedings in Coventry County Court. It is thought that these proceedings were initiated in the afternoon. The fact that K. had been removed was ascertained only three days later on 29th March.

  11. A hearing took place in the Coventry County Court on 31st March, 2010, before District Judge Cottrell. There was a further hearing before a county court judge on 7th April.

  12. At the first hearing, on 31st March, the local authority, both parents and the children’s guardian were all represented by counsel. The district judge directed that K. was to be placed in the interim care of the local authority and orders were made for his recovery.

  13. On 7th April, the county court judge, Judge Bellamy, then sitting as a deputy judge of the High Court heard full argument and made further orders as to receiving of the child and his placement with the local authority.

  14. A further hearing took place before McFarlane J. in the English High Court Family Division, on 5th May, 2010 in Birmingham. On that occasion both parents were represented by lawyers but the parents themselves declined to attend, asserting that the court had not jurisdiction. The parents were given the opportunity of setting out any evidence they wished to place before the High Court in England and Wales in relation to jurisdiction and habitual residence and to submit skeleton arguments on the issue. Neither parents nor the grandmother did so.

  15. The matter again came before McFarlane J. on 21st May, 2010. But by then, despite having had access to free legal aid, and having instructed solicitors and counsel at previous hearings, the parents dispensed with the services of their lawyers and decided not to attend the hearing. The parties and the grandmother knew that this case was set down to consider their assertion that the English courts lacked jurisdiction to deal with their child.

  16. In the absence of submissions from the parents, or the respondent, the judgment of 21st May, 2010, sets out a number of earlier recorded exchanges at the previous hearings between the lawyers representing the various parties in detail. It is necessary only to summarise these for the purposes of this judgment. The following points emerge:

    (1) The child’s mother instructed her counsel to say that the removal of the child to Ireland was “the lesser of two evils”, because her position was that she had desperately sought the medical professionals involved to carry out certain tests to ascertain whether or not there was any medical conditions that could explain the injuries;

    (2) the mother perceived that the consultants were not disposed to obtain a second opinion on the issue;

    (3) her counsel submitted to the County Court Judge that “in her desperation she felt that the position...

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