The Child and Family Agency -v- G & ors

• Judge: Toale J.
• Judgment Date: 01 March 2017
• Neutral Citation: [2017] IEDC 10
• Case Outcome: Approved
• Date: 27 November 2003
• Court: District Court (Ireland)

[2017] IEDC 10

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

G

-AND -

OTHERS

RESPONDENTS

C, GUARDIAN AD LITEM TO F

(Number 1)

In the matter of child F

[Note: This ve rsion of the original decision delivered is prepared for the purpose of publication. Any c hanges from to t he original are

intended only to be a s to f orm and not as t o substanc e, and are for t he purpose of reducing t he possibility of identificat ion of the

child.]

1. Article 8 of Council Regulation (EC) no 2201/2003 of 27 November 2003 conc erning jurisdiction and the recognition and enforcement

of judgments in matrimonial matters and the matters of parental responsibility, (The Regulation) provides as follows:-

General jurisdiction

The c ourts of a Member State shall have jurisdiction in matters of parenta l responsibility over a c hild who is habitually resident in that

Member State at the t ime the court is se ised.

2. Article 16 of T he Regulation provides as follows:-

Seising of a Court

1. A co urt shall be deemed to be seised:

(a) at the time when the doc ument instituting the proc eedings or an equivalent document is lodged with t he co urt,

provided that t he applicant has not subsequently failed to take t he steps he was required to t ake to have service

effec ted on t he respondent;

or

(b) if the doc ument has to be served before being lodged with t he court, at t he time when it is rece ived by the

authority responsible for service, provided t hat the applicant has not subsequently failed t o take t he steps he was

required to take to have the doc ument lodged with the c ourt.

3. It is nec essary to determine the date on w hich the c ourt was seised of proc eedings, as general jurisdiction under Article 8 of T he

Regulation refers to habitual residence of a child at t he time the c ourt is seised.

4. The subjec t matter of the wit hin proceedings is F. F w as born in July 2015 in Ireland. For the purposes of establishing jurisdict ion,

F’s habitual residence (if any) must be determined.

5. F's mother is G. She is a citizen of a member stat e of the EU (hereinafter The Me mber Stat e), other than Ireland.

6. Two putative f athers of F have been named, D and B. G is not married to either D or B. G maintains that D is father. DNA test ing

has indicated t hat B is fat her. The DNA test result has not been formally proved and remains in dispute by G. D has been served with

proceedings but has not participate d in such procee dings. The Child and Family Agency were unaware of B until August 2016, and B

was not served with what will hereafter be desc ribed as the 2015 proceedings.

7. B has been notified of w hat will hereafter be des cribed as the 2016 proceedings under the Child Care Act 1991 (T he 1991 Act), and

also of enquiries being carried out by the court pursuant t o The Regulation. He has indicat ed by email to the so licitors act ing on

behalf of the Child and Family Agency, a nd in conversation with the guardian ad litem, that he has instructed s olicitors in Ireland. I am

satisfied that he has been aware of t he Child and Family Agency's inte rest in this matter since at least August 2016. To date, neit her

he nor any lawyer on his behalf has appeared in c ourt or filed any application, ev en though on the court's direct ion he was spec ifically

informed that the c ourt would complete hearing The Regulation 2201/2003 matter on 14 February 2017.

8. As far as is known to the court, bot h D and B reside in The Member State. As far as is known to the c ourt, neither D nor B have

had any cont act with F.

Proceedings to date

9. Within hours of F’s birth on 11 July 2015, the Gardaí exercised their power under s. 12(1) of T he 1991 Act, and delivered F into the

custody of t he Child and Family Agency pursuant to s.12(3) of The 1991 Act .

10. On 13 July 2015, the Child and Family Agency issued a notice of application for an emergency care order pursuant to s. 12(4) and

13 of The 1991 Ac t. G was named as the sole respondent, and t he subject child (F) wa s referred to as "baby G". The notice w as for

hearing of the application at 2 p.m. on 13 July 2015. It appears that the not ice was lodged with the c ourt on 13 July 2015. The court