Health Service Executive v M.W and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] IESC 38
• Court: Supreme Court
• Docket Number: [S.C. No. 273 of 2013]
• Date: 31 July 2013

[2013] IESC 38

THE SUPREME COURT

Denham C.J.

Clarke J.

MacMenamin J.

[Appeal No: 273/2013]

Health Service Executive (HSE) v W (M) & Anor

IN THE MATTER OF L.W., A MINOR BORN ON THE 25 TH SEPTEMBER 2012

AND IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)

AND IN THE MATTER OF COUNCIL REGULATION (EC) No. 2201/2003 OF THE 27 TH NOVEMBER 2003 CONCERNING JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND MATTERS OF PARENTAL RESPONSIBLITY

Between/

HEALTH SERVICE EXECUTIVE

Plaintiff/Respondent

and

M.W

First Named Defendant/Appellant

and

G.L

Second Named Defendant/Respondent

EEC REG 2003/2201 ART 15(1)(B)

EEC REG 2003/2201 RECITAL 12

EEC REG 2003/2201 RECITAL 13

EEC REG 2003/2201 ART 8

EEC REG 2003/2201 ART 56

T (A CHILD) ART 15 BRUSSELS II REVISED IN RE 2013 EWHC 521 (FAM)

BRITISH NATIONALITY ACT 1981 (1)(A)(UK)

HSE v G(L)& J(J) UNREP BURMINGHAM 2.5.213 2013 IEHC 297

M (L) (A CHILD) IN RE UNREP COBB 27.3.2013 2013 EWHC 646

EEC REG 2003/2201 RECITAL 7

EEC REG 2003/2201 S2 ART 8-15

EEC REG 2003/2201 RECITAL 5

HEALTH SERVICE EXECUTIVE v C (S) & C (A) C-92/12 UNRE ECJ 26.4.2012

EEC REG 68/1612

I (A CHILD), IN RE 2010 1AC 319 2009 3 WLR 1299 2009 UKSC 10

T (A CHILD) ART 15 OF BRUSSELS II REVISED) IN RE 2013 EWHC 521 (FAM)

HSE v SC & AC C 92/12 2012 2 FLR 1040

EEC REG 2003/2201 ART 15(3) PAR C

EEC REG 2003/2201 ART 15(3) PAR D

KORKEIN HALINTO-OIKEUS FINLAND C523/07 2009 ECR I-102805

EEC DIR 2003/2201 ART 8(1)

HAY v O'GRADY 1992 1 IR 210

EEC REG 2003/2201 ART 42

FAMILY LAW

Child care

Application for High Court to request assumption of jurisdiction by foreign court - Appeal against decision that request should be made - Jurisdiction of courts - Transfer to court better placed to hear case - Whether trial judge erred in exercising discretion - Whether regulation applicable to public law proceedings - Freedom of movement - Whether trial judge failed to consider law relating to freedom of movement - Applicable test - Particular connection - Court best placed - Best interests of child - Re T (A Child: Article 15 of Brussels II R Revised) [2013] EWHC 521, [2013] 2 WLR 1263; HSE v LG [2013] IEHC 297, (Unrep, Birmingham J, 2/5/2013); In re LM (A Child) [2013] EWHC 646, (Unrep, High Court of England and Wales, 27/3/2013); Health Service Executive v C(S) (Case C-92/2012), [2012] 2 FLR 1040; Re I (A Child) [2009] UKSC 10, [2010] 1 AC 319; Korkein hallinto-oikeus - Finland (Case C-523/07) [2009] ECR I-102805 and Hay v O'Grady [1992] 1 IR 210 considered - Council Regulation EC/2201/2003, art 15 - Appeal dismissed (273/2013 - SC - 31/7/2013) [2013] IESC 38

Health Service Executive v W(M)

Facts: These proceedings concerned an appeal of a decision by the High Court granting the Health Service Executive"s ('HSE') application for a request to be made by that Court to the Courts of England and Wales for the latter to assume jurisdiction in childcare proceedings concerning L.W, who was the child of the appellant. L.W"s parents were both British citizens but the appellant had moved to Ireland prior to L.W being born. The application was made pursuant to Article 15(1)(b) of Council Regulation EC/2201/2003 ('the Regulation') and was opposed by the appellant but not by L.W"s father. The application was granted as the High Court felt L.W had a particular connection to England and Wales jurisdiction as she was a British citizen therefore it was in the child"s best interests for any further proceedings concerning the placing of her into public care to be conducted in that jurisdiction.

The appellant sought to challenge this decision on the basis that the High Court had erred in deciding that Article 15 of the Regulation was applicable to cases with a public law dimension. It was argued that Article 15 catered for situations where the parties would stay the same if proceedings were moved to a different jurisdiction which was not possible in the case of L.W. It was therefore said that the High Court lacked the power to make such a request. It was also argued that the High Court failed to interpret Article 15 of the Regulation in light of other EU law particularly those relating to freedom of movement. It was further said that the High Court had failed to take into account L.W"s entitlement to Irish citizenship and her connection with the Irish jurisdiction. It was finally argued that it was in the best interests of L.W for such a request not to be made given the fact that the appellant was pregnant again and L.W should be allowed to bond with her sibling when he or she was born.

Held by MacMenamin J (with Denham CJ and Clarke J concurring) that in terms of the appellant"s argument that Article 15 of the Regulation did not apply to public law proceedings, it was clear from the Regulation at various section that this was not the case. It was noted that Recital 5 of the Regulation stated that it 'covers all decisions on parental responsibility, including measures for the protection of the child' and Recital 7 stated that the Regulation 'covers civil law matters' which case law had subsequently confirmed extended to public law proceedings. It was finally pointed out that the Regulation was concerned with the welfare and best interests of children and therefore its effectiveness should not be limited by excluding public law cases. In relation to the argument that the High Court had failed to interpret Article 15 of the Regulation in accordance with EU law relating to freedom of movement, it was held that the Regulation had not only been drafted with the right to freedom of movement in mind, but was part of the overall right of freedom of movement of workers and citizens by supplementing it and seeking to harmonise the enforcement of judgments in matrimonial matters and matters of parental responsibility between Member States. It could not therefore be argued that the Regulation was in conflict with the freedom of movement right.

In terms of the argument that the High Court had failed to take into account L.W"s right to Irish citizenship, it was held that mere presence in a Member State was not always determinative in establishing a particular connection to a country, especially if such a stay was temporary. In the present case, it was said that it was clear that the appellant"s motivation in coming to Ireland from the England was to avoid supervision by that country"s social services authority. It was clear that L.W was entitled to British citizenship by descent and Irish citizenship as she was born in Ireland. However, given the reason the appellant came to Ireland in the first place and the fact that L.W"s father was a permanent resident of England, it was held that L.W did have a particular connection to the England and Wales jurisdiction with her entitlement to Irish citizenship being taken into account in deciding this.

Given the appellant"s history with the social services of that jurisdiction, it was determined by the High Court that the Courts of England and Wales would be a better venue for the family law proceedings due to the information they would have and the fact that witnesses and experts who had knowledge of the appellant would be more readily available there. It was held by the Supreme Court that such an inference was reasonable. Such a course of action was also held to be in the best interests of the child especially in light of the fact that there was some evidence to suggest that L.W would be at risk of harm by her mother despite the fact she was currently in foster care. Such a risk was also said to possibly extend to L.W"s carers

Appeal dismissed.

1 Judgment of Mr. Justice John MacMenamin delivered the 31st day of July, 2013.

2 Judgment Delivered by MacMenamin J. [Nem diss]

Introduction

3 1. This is an appeal against a judgment and order of the High Court (Birmingham J.) delivered on the 14 ^th June, 2013. The appellant, M.W., is the mother of L.W., who was born on the 25 ^th September 2012. In circumstances which will be outlined, the respondent (hereinafter "the HSE") applied to the High Court, seeking that a request be made by that Court to the Courts of England and Wales, that those courts should assume jurisdiction in childcare proceedings concerning L.W. The application was made pursuant to Article 15(1)(b) of Council Regulation EC/2201/2003 ("the Regulation"). Birmingham J. was satisfied that such a request should be made. G.L., who is the child's father, raises no objection to the order being made. The mother is opposed to the application.

The Regulation

4 2. Council Regulation EC/2201/2003 of 27 November 2003 concerns jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. It is necessary to consider a number of its provisions.

5 3. Recital 12 of the Regulation provides:

"The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility".

6 4. Recital 13 provides:

"In the interests of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer the case to a court of another Member State if this court is better placed to hear the case...."

7 5. Article 8 of the Regulation provides:

8 2 "(1) The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is...