Foyle Health Trust v E.C.

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 07 September 2006
• Neutral Citation: [2006] IEHC 448
• Court: High Court
• Docket Number: [2006 No. 8 HLC]
• Date: 07 September 2006

[2006] IEHC 448

THE HIGH COURT

FAMILY LAW

[2006/8 HLC]

FOYLE HEALTH & SOCIAL SERVICES TRUST v C (E) & C (N)

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 2201/2203

AND IN THE MATTER OF S. C. C., A CHILD

BETWEEN

FOYLE HEALTH AND SOCIAL SERVICES TRUST

APPLICANT

AND

E. C. AND N. C.

RESPONDENTS

AND

BY ORDER HEALTH SERVICE EXECUTIVE.

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

EEC REG 2201/2003

EEC REG 2201/2003 ART 15

EEC REG 2201/2003 ART 15(2)(a)

B v H (HABITUAL RESIDENCE: WARDSHIP) 2002 1 FLR 388

W & B v H (CHILD ABDUCTION: SURROGACY) 2002 1 FLR 1008

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999 16 4846

S (PA) v S (AF) 2005 1 ILRM 306 2005 FAM L J 2

B (MINORS) (ABDUCTION) (NO 2), RE 1993 1 FLR 993

LONDON BOROUGH OF SUTTON & MIN FOR JUSTICE v M (R) & M (J) & J (M) 2002 4 IR 488 2002 15 3676

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 5

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 20

W (A C) & W (N C) v IRELAND 1994 3 IR 232 1994 1 ILRM 126 1993 14 4453

CONSTITUTION ART 41.1

CONSTITUTION ART 42.2

CONSTITUTION ART 42.5

C (R) v S (I) 2003 4 IR 431 2004 2 ILRM 285 2004 6 1171

ADOPTION ACT 1976

ADOPTION ACT 1988

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 635 2001 17 4705

ADOPTION ACT 1988 S3

Abstract:

Family law - Habitual residence - Care orders - Child abduction - Hague Convention- Child Abduction and Enforcement of Custody Orders Act, 1991 .

the applicant claimed to be the corporate parent of S who was born to the first and second named respondents. S was born in a hospital in Northern Ireland. It was found that there were difficulties where the first named respondent was residing involving alcohol and tensions as well as inappropriate adult care for S. The applicant took S into foster care with trice weekly visits by the first named respondent. From then on, interim care orders were made on a regular basis. The first named respondent was opposed to the adoption of S and S was abducted by his mother on an access visit. Issues arose over the residency of S arising from the abduction and an order was sought to return S to this jurisdiction.

Held by Ms Justice Dunne that the habitual residence of S immediately prior to his removal from Northern Ireland was that of Northern Ireland. The possibility of adoption which was less favourable to the rights of the family including S in Northern Ireland were such that his return should not be permitted. The court refused to make the order sought.

Reporter: E.C.

1 JUDGMENT of Ms. Justice Dunnedelivered on the 7th day of September, 2006.

2 This judgment is circulated in redacted form to avoid identification of the parties

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 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.)

10 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.

11 As referred to above a replying affidavit was also sworn by the second named...