Health Service Executive -v- BND & anor (Court Order from Another Jurisdiction)

Case OutcomeApproved
CourtDistrict Court
Docket NumberN/A
JudgeHorgan P.
Judgment Date22 May 2012
Neutral Citation[2012] IEDC 10
[2012] IEDC 10
AN CHUIRT DUICHE THE DISTRICT COURT
HEALTH SERVICE EXECUTIVE
APPLICANT
-AND-
BND & DN
RESPONDENTS
CHILD CARE ACT, 1991— SECTION 18
IN THE MATTER OF CHILD 1 AND CHILD 2
22 May 2012
1. This is an applicat ion for a Care Order under section 18 of t he Child Care Act, 1991 in respect of Child 1, who is 12 years old, and
Child 2, who is 11 years old.
2. Both children were born in Country 1. Their mother is from Country 1 and t heir father is from Country 2. They have had a
peripatetic c hildhood, at times living in the joint care of their parents in Country 1, then with their grandparents in Country 2, then in
the c are of their fat her in Country 1, and for a period in care in Country 1. They t hen lived again in the joint care of their parents in
Country 1 under supervision of a local Court Order in Country 1.
3. The c hildren were brought to Ireland by their mother in breach of a Country 1 Court Order in June 2010.
4. The c hildren resided with their mother and her partner (also from Country 1) in Ireland from June 2010 until February 2011. The
family ca me to the at tention of the HSE in December 2010. The HSE provided family support service and on- going supervision arising
from identified risks of alcohol use and poor supervision of t he children.
5. The HSE and t he Irish Courts were unaware of the existence of the Country 1 Court Order at this time. The a cc ount of prior care
of the children outlined by the mother proved to be inac curate.
6. The aut horities and Court in Country 1 are now fully aware of the presenc e of t he children in Ireland and the making of protect ive
orders by the Irish Courts in respect of the children. They have not lodged a Request for Return of the Children to Country 1 pursuant
to t he Country 1 Court Orders. The Court has been informed that the HSE’s c ontact with International Social Services has e stablished
that jurisdiction in this matter t o address the care needs of the c hildren has been conc eded to t he Irish court.
7. The c hildren’s mother is represented within these proceedings and has indicate d, through her solicitor, her consent to the making
of the Orders in the best interest s of t he children and having regard to the expressed wishes of the c hildren. While of Country 1
nationality, her habitual residence is within the local jurisdiction of this Court.
8. The c hildren’s father has not t aken part in the proce edings though he was in c ontact with the HSE and also maintains some
contac t with the c hildren. His habitual residence is in Country 2. He originally proposed that t he children would be returned to his
care; howev er, this request is in abeyanc e. He has now expressed the view t o HSE social workers that he believes the best interest s
of the children are served by staying in c are in Ireland.
9. The c hildren were appointed a Guardian Ad Litem (“GAL”) to represent their separate interest in the proc eedings. The GAL is
represented by her solicitor.
10. The c hildren’s first language is that of Country 2 and their second language is t hat of Country 1; both now spea k English
proficiently. These are remarkably bright and talented c hildren. I have met them with the GAL and their social worker. They love both
their parents and wish to retain links and regular conta ct and acc ess with both their parents. T he children have regular acc ess with
their father in Country 2 t hrough Skype, and have direct ac cess with t heir mother, although they would like that contact to be more
regular as they are worried about her. T hey wish to remain in their current fost er placement for the f oreseeable future and until they
are 18 years old.
11. The issue of jurisdict ion of this Court t o make long term orders in respect of the c hildren arises by virtue o f Article 10 of Council
Regulation 2201/2003 which stat es that in the c ase of w rongful removal or retention, the courts of the Member State where the c hild
was habitually resident immediately before the w rongful removal or retention shall retain jurisdict ion until the child has ac quired a
habitual residence in another Member State and e ach person, instit ution or other body having rights of c ustody has acquiesc ed in the
removal or retention.
12. I have been informed that the District Court in Country 1 has st ated that t hey would not c laim jurisdiction in respect of the
matter, considering that t he HSE and this Court we re monitoring the welfare of the c hildren. I am also mindful that this might be
viewed as less t han a direct conc ession of jurisdiction in relation to anyt hing more than ta king protec tive measures (within the
meaning of Artic le 20 of the Regulation).
13. However, the c hildren have now resided in Ireland for more than a year and have sett led in their current foste r placement and
have expressed the des ire to stay here in their current fost er placement in Ireland. Furthermore, a Request for Return has not been
lodged before the c ompetent authority in Ireland. I am also assured that t he District Court in Country 1 is fully aware of the nature of
the procee dings before the Irish court and t he orders being sought by t he HSE in respect of the c hildren; accordingly, I am entitled to
assume that t his court now has jurisdiction t o make a full Care Orders in respect of the children pursuant to Artic le 10(b)(i) of the
Regulation.
14. Furthermore, I have bee n assured that International Social Services in Country 1 has been in full communication with t he HSE and
has investigated t he position in Country 1. Ac cordingly, this application proc eeds with t he acquiesc ence of the District Court in
Country 1, which made orders in this case heretofore. Ac cordingly, the Irish District Court also has jurisdict ion to make full Care
Orders in respect of the c hildren in acc ordance wit h Article 1(a) of the Regulation.

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