Foyle Health and Social Services Trust v E.C & Anor, [2006] IEHC 448 (2006)

Docket Number:2006 8HLC
Judge:Dunne J.








BY ORDER HEALTH SERVICE EXECUTIVE.JUDGMENT of Ms. Justice Dunne delivered on the 7th day of September, 2006.

The applicant herein is Foyle Health and Social Services Trust. It claims to be the corporate parent of S.C.C. who was born in January, 2005, in Co. D. The first and second named respondents are his parents. They were married in July, 1996.

S. has six siblings, the eldest having been born in August, 1996 and the youngest having been born in March, 2003. It is not necessary to outline the full background of the family. Suffice it to say, all of S.'s siblings are the subject of care orders in this jurisdiction. A full summary of the circumstances giving rise to this situation is set out in the affidavit of F. L., sworn herein on 16th May, 2006. He is a social worker employed by the third named respondent. It is sufficient to note that the first and second named respondent have a volatile relationship, that they both have engaged in criminality, alcohol abuse is a factor in their lives and the children of the marriage have suffered neglect and in some instances physical abuse.

North Cork Community Services were responsible for the care of the six children of the first and second named respondents. They held a case conference to consider what steps should be taken in respect of the child then expected by the first named respondent. It was decided that there were serious concern as to the health

and welfare of the child and it was concluded that the child would be at risk of significant harm and that an emergency care order would be sought following the birth of the child with a view to applying for a full care order thereafter. On 30th November, 2004, the first named respondent was informed of this decision. She indicated that she would give birth to the child elsewhere to avoid the child being taken into care.

Subsequently on 21st December, 2004, the first named respondent notified North Cork Community Services that she was residing in Northern Ireland. On 15th January, 2005, S. was born in A. Hospital in Northern Ireland. Staff of the first named applicant monitored the first named respondent and S. from 24th January, 2005, to 9th February, 2005. On 10th February, 2005, it was found that there were difficulties where the first named respondent was residing involving alcohol and tensions and that there was an absence of appropriate adult care for S. The first named respondent attempted an act of self harm and indicated that S. would be injured if anyone tried to remove him. Accordingly the applicant took S. into care and he was placed in foster care with trice weekly visits by the first named respondent. The second named respondent arrived in Derry having been released from prison in this jurisdiction in March, 2005.

The situation thereafter was that interim care orders were made on a regular basis in Northern Ireland in respect of S. S. continued in the care of foster parents and access visits took place during that period. The position continued to be monitored by the applicant.

It was proposed to make a final care order in respect of S. and the same was listed for hearing before the High Court in Belfast on the 13th day of February, 2006. In an affidavit sworn herein on 5th April, 2006, M. S., a solicitor attached to the law centre at F., the solicitor for the applicant herein with the authority of the applicant herein, exhibited a number of reports that had been prepared for the purposes of child care litigation in Northern Ireland in respect of S.. Those reports set out the history of the matter from the time S. was made the subject of interim care orders in Northern Ireland until the date of his abduction. Those comprehensive reports set out details in regard to contact between S. and his parents and contain assessments of the family situation as a whole. On 13th January, 2006, (wrongly dated 13th January, 2005), a court report prepared for the final hearing was prepared by Ms. F. and Ms. McC. That report considered all of the possible options available in relation to the future of S. including a placement with S.'s parents or with other extended family members. Ultimately the view reached was that S.'s care required stability and security which could best be achieved through adoption. The views of the first and second named respondents were sought and it is clear that throughout the process the fist named respondent has made it clear that she is opposed to the adoption of S. Clearly the fact that an application for a final care order was listed for hearing was the catalyst that led to the abduction of S. by his mother on 3rd February, 2006, during an access visit.

Replying affidavits were furnished by the first and second named respondent. In her replying affidavit, the first named respondent takes issue with a number of matters. In the first instance, she denies that the infant, S., is habitually resident in Northern Ireland. She states this on the basis that the birth of the child occurred in Northern Ireland without the knowledge or consent of the second named respondent and that the detention of the child in Northern Ireland militates against such a finding. She further denies that the removal of the child from the jurisdiction of the Northern Ireland courts to this jurisdiction was wrongful. She alleges that the habitual residence of the child is within this jurisdiction. She refers to the proposal for adoption and contends that a return of S. to the jurisdiction of the courts of Northern Ireland would breach the constitutional rights of her family, those of S. and S.'s siblings. She also alleges that the return of the infant to the jurisdiction of Northern Ireland would expose him to psychological harm or otherwise place him in an intolerable situation in that it is "the intention of the said courts to place the infant for adoption thereby severing his family ties". (The reference to "courts" in that sentence is obviously intended to be a reference to the applicant.)

In her affidavit she also referred to an application made to the courts in Northern Ireland pursuant to the provisions of Article 15 of Council Regulation EC 2201/2203 to transfer the care proceedings to this jurisdiction as being the courts best place to hear the case. That order was refused. She stated that the judge hearing those proceedings placed great emphasis on the wish of S.'s foster parents to adopt him. Finally she stated that the only connection which the infant S. had to Northern Ireland was the fact of his birth in that jurisdiction. She also contended that it was contrary to the purpose of the Convention and regulations to return an infant summarily to another jurisdiction solely for the purpose of severing his family relationship. Finally she contended that the release sought herein should be refused.

As referred to above a replying affidavit was also sworn by the second named respondent. The same was in very similar terms to that of the first named respondent save that he indicated that while he understood the reasons why the first named respondent travelled to Northern Ireland to give birth he did not consent to the same.

A replying affidavit was sworn by M.F., a social worker employed by the applicant herein. She disputes the contention that the first named respondent moved to Northern Ireland to give birth without the consent of the second named respondent. She expresses the belief that the second named respondent was aware that the first named respondent had moved to Northern Ireland prior to the birth of S. In that regard she exhibits a note from the Probation and Welfare Service in which Mr. C. had expressed his wishes for his unborn child. It states as follows:-"I want the unborn child to stay with his mother, E.C. I will cooperate in every way. The mother's heart will be broken and my heart if the child is taken. E.'s mother and brother are staying with E. to help her." I should state at this point that I do not think that that expression of views by the second named respondent goes as far as contended for by Ms. F. but I note that he was at the time in custody and obviously had nothing to do with the removal of the first named respondent to Northern Ireland. However it is noteworthy that up to 3rd February, 2006, there was nothing done by the second named respondent to suggest or indicate that he had not consented to or had expressly objected to the removal of the first named respondent to Northern Ireland for the purpose of giving birth.

Ms. F. in her affidavit goes on to aver that there is no reality to any assertion that S. had been at any time habitually resident anywhere other than Northern Ireland. Prior to his removal he was in the care of the applicant and she argued that his removal was in breach of the rights of custody vested in the applicant and was wrongful. She pointed out that S. was and remains subject to care orders in Northern Ireland.

Ms. F. then takes issue with a number of other averments contained in the affidavits of the first and second named respondent. She takes issue with the suggestion that any delay in the making of an application pursuant to the Hague Convention was to do with waiting for S. to be presented to the adoption panel on 16th March, 2006. That procedure could not take place because S. was no longer in the jurisdiction.

She disputes the allegation that there is a risk that the return of S. would expose him to psychological harm or place him in an intolerable situation. She points out that the first named respondent gave no consideration to his welfare when abducting him. She refers to a report of Dr. L.McL., child...

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